UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 14A

Proxy Statement Pursuant to Section 14(a) of the

Securities Exchange Act of 1934

 

 

Filed by the Registrant  ☒                            Filed by a Party other than the Registrant  ☐

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☐		Preliminary Proxy Statement
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☒		Definitive Proxy Statement
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☐		Soliciting Material Pursuant to §240.14a-12

ORBCOMM Inc.

(Name of Registrant as Specified In Its Charter)

 

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

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ORBCOMM Inc.

May 27, 2021

Dear Shareholder:

You are cordially invited to attend a special meeting of the shareholders of ORBCOMM Inc. (“we,” “our,” “ORBCOMM” or the “Company”). We will hold the special meeting virtually, on July 8, 2021, at 9:00 a.m., Eastern time. Due to concerns regarding the COVID-19 pandemic and to protect the safety and well-being of our shareholders, board of directors and employees, the special meeting will be a virtual meeting conducted solely online via live webcast communication. You will not be able to attend the special meeting in person.

At the special meeting, you will be asked to consider and vote upon a proposal to adopt the Agreement and Plan of Merger, (as amended, modified or supplemented from time to time, the “Merger Agreement”), dated as of April 7, 2021, by and among ORBCOMM, GI DI Orion Acquisition Inc, a Delaware corporation (“Parent”), and GI DI Orion Merger Sub Inc, a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”). Upon the terms and subject to the conditions of the Merger Agreement, Merger Sub will merge with and into ORBCOMM (the “Merger”), with ORBCOMM continuing as the surviving corporation of the Merger and a wholly-owned subsidiary of Parent.

If the Merger Agreement is adopted and the Merger is completed, each share of our common stock, par value $0.001 per share (the “Common Stock”) (other than certain shares of Common Stock specified in the Merger Agreement) will be converted into the right to receive $11.50 per share (the “Common Stock Merger Consideration”) in cash, without interest and subject to any required tax withholding, representing a 50% premium to ORBCOMM’s 90-day volume-weighted average share price prior to announcement of the Merger Agreement and an approximately 52% premium to the closing price of shares of Common Stock as of Wednesday, April 7, 2021, the last trading day prior to announcement of the Merger Agreement. Additionally, each share of our Series A convertible preferred stock par value $0.001 per share (“Preferred Stock”, and together with the Common Stock, “Company Stock”) (other than certain shares specified in the Merger Agreement) will be converted into the right to receive an amount equal to (i) the product of (x) the Common Stock Merger Consideration multiplied by (y) 1.66611, plus (ii) an amount equal to (x) the number of shares of Preferred Stock issuable in respect of any accrued and unpaid dividends thereon as of the completion of the Merger, multiplied by (y) the Common Stock Merger Consideration multiplied by (z) 1.66611 (the “Preferred Stock Merger Consideration”, collectively with the Common Stock Merger Consideration, the “Merger Consideration”).

The ORBCOMM board of directors unanimously recommends that our shareholders vote “FOR” the proposal to adopt the Merger Agreement and “FOR” the other matters to be considered at the special meeting.

The enclosed proxy statement describes the Merger Agreement, the Merger and related matters, and attaches a copy of the Merger Agreement. We urge shareholders to read the entire proxy statement, including the Merger Agreement, carefully, as it sets forth the details of the Merger Agreement and other important information related to the Merger.

Your vote is very important. The Merger cannot be completed unless the holders of a majority of the voting power of the outstanding Company Stock entitled to vote at the special meeting vote in favor of the proposal to adopt the Merger Agreement. If you fail to vote virtually or by proxy, or fail to instruct your broker on how to vote, it will have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement.

You will be able to participate in the special meeting and vote during the special meeting via live webcast by visiting www.meetingcenter.io/256278191, Password: ORBC2021. To participate in the special meeting, registered shareholders will need the control number included on their proxy card, and all other shareholders will need to follow the instructions that accompanied their proxy materials. If you hold your shares through an intermediary, such as a bank or broker, you must register in advance in order to obtain a control number and attend the special meeting, pursuant to the instructions provided in the Notice of Special Meeting of Shareholders.

More information about the special meeting, the Merger and the other proposals for consideration at the special meeting is contained in the accompanying proxy statement.

If you have any questions or need assistance in voting your shares, please contact Morrow Sodali, which is acting as the proxy solicitation agent and information agent for ORBCOMM in connection with the special meeting.

On behalf of ORBCOMM’s entire board of directors, we want to thank you for your continued support.

Sincerely yours,

 

 

Jerome B. Eisenberg

Chairman of the Board

Neither the U.S. Securities and Exchange Commission nor any state securities regulatory agency has approved or disapproved the Merger, passed upon the merits or fairness of the Merger, the Merger Agreement or the other transactions contemplated by the Merger Agreement or passed upon the adequacy or accuracy of the disclosure in this document. Any representation to the contrary is a criminal offense.

This proxy statement is dated May 27, 2021 and is first being mailed to shareholders on or about May 27, 2021.

ORBCOMM INC.

NOTICE OF SPECIAL MEETING OF SHAREHOLDERS

 

Date:		July 8, 2021
Time:		9:00 a.m., Eastern time
Virtual Access:		www.meetingcenter.io/256278191, Password: ORBC2021
Record Date:		May 25, 2021

Meeting Agenda:

To consider and vote upon the following proposals:

 

1.

to adopt the Agreement and Plan of Merger (the “Merger Agreement”), dated as of April 7, 2021, by and among ORBCOMM Inc. (the “Company”), GI DI Orion Acquisition Inc, a Delaware corporation (“Parent”), and GI DI Orion Merger Sub Inc, a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), pursuant to which, subject to the terms and conditions set forth in the Merger Agreement, Merger Sub will merge with and into the Company (the “Merger”), with the Company continuing as the surviving corporation and as a wholly-owned subsidiary of Parent; and

 

2.

to approve, on an advisory (non-binding) basis, certain compensation that may be paid or become payable to the Company’s named executive officers in connection with the Merger; and

 

3.

to approve the adjournment of the special meeting, if necessary or appropriate, including to solicit additional proxies if there are insufficient votes at the time of the special meeting to approve the proposal to adopt the Merger Agreement or in the absence of a quorum.

Shareholders will be able to participate in the special meeting and vote during the special meeting via live webcast by visiting www.meetingcenter.io/256278191, Password: ORBC2021. To participate in the special meeting, registered shareholders will need the control number included on their proxy card and all other shareholders will need to follow the instructions that accompanied their proxy materials.

Shareholders that hold their shares through an intermediary, such as a bank or broker, must register in advance to obtain a control number and attend the special meeting. Please note that for shareholders that hold their shares through an intermediary the control number to attend the special meeting is separate and different from the control number included in the proxy card shareholders receive from their intermediary for purposes of providing voting instructions to their proxy.

ORBCOMM’s board of directors (the “ORBCOMM Board”) has unanimously determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are advisable and fair to, and in the best interests of, the Company and its shareholders, declared it advisable to enter into the Merger Agreement, approved the execution, delivery and performance of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Merger, and directed that the adoption of the Merger Agreement be submitted for consideration by ORBCOMM’s shareholders at the special meeting. The ORBCOMM Board recommends that the shareholders of ORBCOMM Inc. vote (i) “FOR” the proposal to adopt the Merger Agreement, (ii) “FOR” the advisory (non-binding) proposal to approve certain compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger, and (iii) “FOR” the proposal to approve the adjournment of the special meeting, if necessary or appropriate, including to solicit additional proxies if there are insufficient votes at the time of the special meeting to approve the proposal to adopt the Merger Agreement or in the absence of a quorum. If you sign, date and return your proxy card without indicating how you wish to vote on a proposal, your proxy will be voted “FOR” each of the foregoing proposals in accordance with the recommendation of the ORBCOMM Board.

 

Your vote is important, regardless of the number of shares of Company Stock you own. The adoption of the Merger Agreement requires the affirmative vote of the holders of a majority of the voting power of the outstanding shares of Common Stock and Preferred Stock entitled to vote at the special meeting, and that approval is a condition to the completion of the Merger. The approval of the advisory (non-binding) proposal to approve certain compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and the proposal to adjourn the special meeting, if necessary or appropriate, including to solicit additional proxies if there are insufficient votes at the time of the special meeting to approve the proposal to adopt the Merger Agreement or in the absence of a quorum, requires the affirmative vote of a majority of the voting power of the outstanding shares of Company Stock present virtually or represented by proxy at the special meeting and entitled to vote thereon, but approval of this proposal is not a condition to the completion of the Merger. If you fail to vote virtually or by proxy, or fail to instruct your broker, bank or other nominee on how to vote, the shares of Company Stock that you own will not be counted for purposes of determining whether a quorum is present at the special meeting, which will have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement.

Under Delaware law, shareholders who do not vote in favor of the proposal to adopt the Merger Agreement will have the right to seek appraisal of the fair value of their shares of Company Stock as determined by the Delaware Court of Chancery if the Merger is completed, but only if they submit a written demand for an appraisal before the vote on the proposal to adopt the Merger Agreement and comply with the other Delaware law procedures explained in the accompanying proxy statement. See the section of this proxy statement entitled “Appraisal Rights.”

You may revoke your proxy at any time before the vote at the special meeting by following the procedures outlined in the accompanying proxy statement.

Only holders of record of shares of Company Stock as of the close of business on May 25, 2021, the record date for the special meeting, are entitled to receive notice of and to vote at the special meeting.

Before voting your shares of Company Stock, we urge you to, and you should, read the entire proxy statement carefully, including its annexes and the documents incorporated by reference in the proxy statement.

By order of the Board of Directors,

 

 

Christian G. Le Brun

Secretary

TABLE OF CONTENTS

 

		Page
SUMMARY			1
The Companies			1
The Special Meeting			1
The Merger			4
Treatment of Company Equity Awards			4
Conditions to Completion of the Merger			5
Recommendation of the ORBCOMM Board			6
Reasons for the Merger			6
Opinion of PJT Partners LP			6
Interests of the Company’s Directors and Executive Officers in the Merger			7
Termination Fee; Limited Guaranty			7
Financing			7
Material U.S. Federal Income Tax Consequences of the Merger			8
Regulatory Approvals			8
Appraisal Rights			9
Delisting and Deregistration of the Common Stock			9
Acquisition Proposal; Non-Solicitation			9
Change in the ORBCOMM Board Recommendation			11
Termination and Termination Fees			11
Market Price of the Common Stock			13
QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING AND THE MERGER			14
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS			22
THE COMPANIES			23
ORBCOMM Inc.			23
GI DI Orion Acquisition Inc			23
GI DI Orion Merger Sub Inc			23
THE SPECIAL MEETING			24
Date and Time of and Virtual Access to the Special Meeting			24
Purposes of the Special Meeting			24
Record Date, Notice and Quorum			24
Required Vote			25
Stock Ownership and Interests of Certain Persons			25
Voting; Proxies; Revocation			25
Abstentions			28
Solicitation of Proxies			28
Adjournments and Postponements			28
Other Information			29
THE MERGER			30
Certain Effects of the Merger			30
Background of the Merger			30
Reasons for the Merger; Recommendation of the ORBCOMM Board			36
Opinion of PJT Partners LP			40
Certain ORBCOMM Unaudited Prospective Financial Information			48
Termination Fee; Limited Guaranty			51
Financing			51
Interests of the Company’s Directors and Executive Officers in the Merger			53
Potential Severance Payments			54
Retention Payments			55

		Page
Post-Closing Compensation Arrangements			55
Quantification Of Potential Payments And Benefits To The Company’s Named Executive Officers In Connection With The Merger			56
Material U.S. Federal Income Tax Consequences of the Merger			57
Regulatory Approvals			58
Delisting and Deregistration of Common Stock			59
THE MERGER AGREEMENT			60
Explanatory Note Regarding the Merger Agreement			60
Structure of the Merger; Certificate of Incorporation; Bylaws; Directors and Officers			60
When the Merger Becomes Effective			61
Effect of the Merger on the Common Stock			61
Treatment of Company Equity Awards			62
Payment for Common Stock in the Merger			62
Representations and Warranties			63
Conduct of Business Pending the Merger			65
Access			68
Acquisition Proposal; Non-Solicitation			69
Company Stockholders Meeting			73
Financing and Financing Cooperation			73
Employee Matters			76
Efforts to Complete the Merger			77
Indemnification and Insurance			79
Coordination on Transaction Litigation			80
Other Covenants and Agreements			81
Conditions to Completion of the Merger			81
Termination			82
Company Termination Fee			83
Parent Termination Fee			84
Limitation on Remedies			85
Expenses			85
Amendment and Modification			85
Jurisdiction; Specific Enforcement			86
ADVISORY VOTE ON NAMED EXECUTIVE OFFICER MERGER-RELATED COMPENSATION			87
VOTE ON ADJOURNMENT			88
MARKET PRICE OF THE COMMON STOCK			89
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT			90
APPRAISAL RIGHTS			92
MULTIPLE STOCKHOLDERS SHARING ONE ADDRESS			97
SUBMISSION OF STOCKHOLDER PROPOSALS			98
WHERE YOU CAN FIND ADDITIONAL INFORMATION			99
ANNEX A          Agreement and Plan of Merger			A-1
ANNEX B          Opinion, dated April 7, 2021 of PJT Partners LP			B-1
ANNEX C         Section  262 of the General Corporation Law of the State of Delaware			C-1

 

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QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING AND THE MERGER

The following questions and answers address briefly some questions you may have regarding the special meeting and the proposals to be voted on at the special meeting. These questions and answers may not address all of the questions that may be important to you as a stockholder of the Company. Please refer to the more detailed information contained elsewhere in this proxy statement, the annexes to this proxy statement and the documents referred to or incorporated by reference in this proxy statement, which you should read carefully and in their entirety. You may obtain the documents incorporated by reference into this proxy statement without charge by following the instructions under the section of this proxy statement entitled “Where You Can Find Additional Information.”

 

Q:	Why am I receiving this proxy statement?

 

A:

On April 7, 2021, the Company entered into the Merger Agreement, providing for the acquisition of the Company by Parent for a price of $11.50 per share of Common Stock, plus additional amounts to be paid for shares of Preferred Stock (as described below). You are receiving this proxy statement in connection with the solicitation of proxies by the ORBCOMM Board in favor of the Merger Proposal and to approve the other related proposals to be voted on at the special meeting.

 

Q:	As a stockholder of ORBCOMM, what will I receive in the Merger?

 

A:

If the Merger is completed you will receive (i) the Common Stock Merger Consideration in cash, without interest and subject to any required tax withholding, for each outstanding share of Common Stock that you own immediately prior to the Effective Time and (ii) an amount equal to (1) the product of (x) the Common Stock Merger Consideration multiplied by (y) 1.66611, plus (2) an amount equal to (x) the number of shares of Preferred Stock issuable in respect of any accrued and unpaid dividends thereon as of the Effective Time, multiplied by (y) the Common Stock Merger Consideration multiplied by (z) 1.66611, in cash, without interest and subject to any required tax withholding, for each outstanding share of Preferred Stock that you own immediately prior to the Effective Time, in each case unless you have properly exercised and perfected your demand for appraisal rights in accordance with Section 262 of the DGCL with respect to such shares.

 

Q:	When and where is the special meeting?

 

A:

The special meeting will be held virtually, on July 8, 2021, at 9:00 a.m., Eastern time. Due to concerns regarding the COVID-19 pandemic and to protect the safety and well-being of our shareholders, Board of Directors and employees, the special meeting will be a virtual meeting conducted solely online via live webcast communication. You will not be able to attend the special meeting in person. Shareholders will be able to participate in the special meeting and vote during the special meeting via live webcast by visiting www.meetingcenter.io/256278191, Password: ORBC2021. To participate in the special meeting, registered shareholders will need the control number included on their proxy card and all other shareholders will need to follow the instructions that accompanied their proxy materials.

 

Q:	Who is entitled to vote at the special meeting?

 

A:

Only holders of record of the Common Stock and Preferred Stock at the close of business on May 25, 2021, the record date for the meeting, may vote at the special meeting. Each shareholder is entitled to one vote for each share of our common stock and 1.66611 votes for each share of Series A convertible preferred stock, in each case held on the record date. There is no cumulative voting. On May 25, 2021, the record date for the special meeting, there were 79,543,070 shares of Common Stock and 43,102 shares of Preferred Stock outstanding and entitled to vote.

 

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Q:	What matters will be voted on at the special meeting?

 

A:	At the special meeting, you will be asked to consider and approve the following proposals:

 

•

the Merger Proposal;

 

•

the Compensation Proposal; and

 

•

the Adjournment Proposal.

 

Q:	How do I attend the special meeting?

 

A:

The special meeting will be a completely virtual meeting of shareholders, which will be conducted exclusively by webcast. No physical meeting will be held. You will be able to attend the special meeting online and submit your questions during the meeting by visiting www.meetingcenter.io/256278191. You also will be able to vote your shares online by attending the Special Meeting online by visiting www.meetingcenter.io/256278191, Password: ORBC2021. To participate in the Special Meeting, you will need to review the information included on your Notice of Special Meeting, on your proxy card or on the instructions that accompanied your proxy materials and use your meeting access control number. The password for the meeting is ORBC2021.

If you hold your shares through an intermediary, such as a brokerage firm, bank, broker-dealer or other similar organization or nominee, you must register in advance using the instructions below.

The online meeting will begin promptly at 9:00 a.m., Eastern Time. We encourage you to access the meeting prior to the start time leaving ample time for the check in. Please follow the registration instructions as outlined in this proxy statement.

 

Q:	How many shares are needed to constitute a quorum?

 

A:

A quorum will be present if holders of a majority of the voting power of our Company Stock issued and outstanding and entitled to vote at the special meeting are present virtually or represented by proxy at the special meeting. If a quorum is not present at the special meeting, the special meeting may be adjourned or postponed from time to time until a quorum is obtained.

As of the close of business on May 25, 2021, the record date for the special meeting, there were 79,543,070 shares of Common Stock outstanding and 43,102 shares of Preferred Stock outstanding.

If you submit a proxy but fail to provide voting instructions or abstain on any of the proposals listed on the proxy card, your shares will be counted for the purpose of determining whether a quorum is present at the special meeting. If your shares are held in “street name” by your broker, bank or other nominee and you do not instruct the nominee how to vote your shares, your broker, bank or other nominee will not vote on your behalf with respect to any of the proposals, and your shares will not be counted for purposes of determining whether a quorum is present for the transaction of business at the special meeting.

 

Q:	What vote of ORBCOMM shareholders is required to approve the Merger Proposal?

 

A:

Approval of the Merger Proposal requires the affirmative vote of the holders of a majority of the voting power of our Company Stock outstanding as of the close of business on the record date. An abstention with respect to the Merger Proposal, or a failure to vote your shares of Company Stock (including a failure to instruct your broker, bank or other nominee to vote shares held on your behalf), will have the same effect as a vote “AGAINST” this proposal.

 

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Q:	What vote of ORBCOMM shareholders is required to approve the other proposals to be voted upon at the special meeting?

 

A:

Each of (i) the Compensation Proposal and (ii) the Adjournment Proposal requires the affirmative vote of a majority of the voting power of our Company Stock present virtually or represented by proxy at the special meeting and entitled to vote thereon. An abstention with respect to either proposal will have the same effect as a vote “AGAINST” these proposals. A failure to return your proxy card or otherwise vote your shares of Company Stock (including a failure of your broker, bank or other nominee to vote shares held on your behalf), will have no effect on these proposals, assuming a quorum is present.

 

Q:	How does the ORBCOMM Board recommend that I vote?

 

A:	The ORBCOMM Board unanimously recommends that ORBCOMM shareholders vote:

 

•

“FOR” the Merger Proposal;

 

•

“FOR” the Compensation Proposal; and

 

•

“FOR” the Adjournment Proposal.

For a discussion of the factors that the ORBCOMM Board considered in determining to recommend in favor of the approval of the Merger Proposal, see the section of this proxy statement entitled “The Merger — Reasons for the Merger; Recommendation of the ORBCOMM Board.” In addition, in considering the recommendation of the ORBCOMM Board with respect to the Merger Agreement, you should be aware that some of our directors and executive officers have interests that may be different from, or in addition to, the interests of ORBCOMM shareholders generally. For a discussion of these interests, see the section of this proxy statement entitled “The Merger — Interests of the Company’s Directors and Executive Officers in the Merger.”

 

Q:	How do ORBCOMM’s directors and officers intend to vote?

 

A:

The Company’s directors and executive officers have informed us that they intend to vote their shares of Company Stock in favor of the Merger Proposal and the other proposals to be considered at the special meeting, although they have no obligation to do so. As of the record date, our directors and executive officers owned and were entitled to vote, in the aggregate, 4,720,745 shares of Common Stock, or approximately 5.9% of the outstanding shares of Common Stock entitled to vote at the special meeting and 0 shares of Preferred Stock, or 0% of the outstanding shares of Preferred Stock entitled to vote at the special meeting.

 

Q:	Am I entitled to rights of appraisal under the DGCL?

 

A:

If the Merger is completed, shareholders who do not vote in favor of the Merger Proposal and who properly demand appraisal of their shares of Company Stock will be entitled to appraisal rights in connection with the Merger under Section 262 of the DGCL. This means that holders of shares of Company Stock are entitled to have their shares appraised by the Delaware Court of Chancery and to receive payment in cash of the “fair value” of their shares of Company Stock, exclusive of any elements of value arising from the accomplishment or expectation of the Merger, together with interest on the amount determined to be fair value, if any, as determined by the court. Shareholders who wish to seek appraisal of their shares are in any case encouraged to seek the advice of legal counsel with respect to the exercise of appraisal rights due to the complexity of the appraisal process. The DGCL requirements for exercising appraisal rights are described in additional detail in this proxy statement, and the relevant section of the DGCL regarding appraisal rights is attached as Annex C to this proxy statement and is incorporated by reference herein in its entirety. For more information, see the section of this proxy statement entitled “Appraisal Rights.”

 

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Q:	When is the Merger expected to be completed?

 

A:

As of the date of this proxy statement, we expect to complete the Merger in the second half of 2021. However, completion of the Merger is subject to the satisfaction or waiver of the conditions to the completion of the Merger, including the expiration of the required regulatory waiting period under the HSR Act, CFIUS Approval (as defined in the Merger Agreement), FCC approval, and certain specified telecommunications, foreign direct investment and national security approvals in foreign jurisdictions, which are described in this proxy statement, and we cannot be certain when or if the conditions to the Merger will be satisfied or, to the extent permitted, waived. For more information, see the section of this proxy statement entitled “The Merger – Regulatory Approvals”.

 

Q:	What happens if the Merger is not completed?

 

A:

If the Merger Agreement is not adopted by the Company’s shareholders, or if the Merger is not completed for any other reason, the Company’s shareholders will not receive any payment for their shares of Company Stock in connection with the Merger. Instead, the Company will remain a public company, and shares of Common Stock will continue to be registered under the Exchange Act, as well as listed and traded on the NASDAQ. In the event that either ORBCOMM or Parent terminates the Merger Agreement, then, in certain specified circumstances, ORBCOMM may be required to pay Parent a termination fee of either $32,900,000 or $16,500,000, or Parent may be required to pay ORBCOMM a termination fee of $51,800,000, as applicable. For more information, see the sections of this proxy statement entitled “The Merger Agreement — Company Termination Fee” and “The Merger Agreement — Parent Termination Fee.”

 

Q:	Why am I being asked to consider and cast a vote on the Compensation Proposal? What will happen if shareholders do not approve this proposal?

 

A:

The inclusion of this Compensation Proposal is required by the rules of the Securities and Exchange Commission (the “SEC”); however, the approval of the Compensation Proposal is not a condition to the completion of the Merger and the vote on this Compensation Proposal is an advisory vote by shareholders and will not be binding on the Company or Parent. If the Merger Proposal is approved by the Company’s shareholders and the Merger is completed, the Merger-related compensation will be paid to the Company’s named executive officers in accordance with the terms of their compensation agreements and arrangements, even if shareholders fail to approve this Compensation Proposal.

 

Q:	How does the Merger Consideration compare to the market price of shares of Common Stock?

 

A:	The Merger Consideration of $11.50 per share represents a 50% premium to ORBCOMM’s 90-day volume-weighted average share price and an approximately 52% premium to the closing price of the Common Stock as of April 7, 2021, the last trading day prior to the announcement of the Merger Agreement.

 

Q:	What do I need to do now? How do I vote my shares of Common Stock?

 

A:	We urge you to read this entire proxy statement carefully, including its annexes and the documents incorporated by reference in this proxy statement, and to consider how the Merger affects you. Your vote is important, regardless of the number of shares of Common Stock you own.

Voting at the Meeting

Shareholders of record will be able to vote by virtually attending the special meeting. If you are not a stockholder of record but instead hold your shares of Company Stock in “street name” through a broker, bank or other nominee, you must provide a legal proxy executed in your favor from your broker, bank or other nominee in order to be able to vote virtually at the special meeting.

 

17

It is not necessary to attend the special meeting in order to vote your shares of Company Stock. To ensure that your shares of Company Stock are voted at the special meeting, we recommend that you provide voting instructions promptly by proxy, even if you plan to attend the special meeting virtually.

Attending the special meeting virtually does not itself constitute a vote on any proposal.

Shares of Company Stock Held by Record Holder

If you are a registered shareholder (that is, your shares are registered directly in your name through our stock transfer agent, Computershare, or you have stock certificates), you may vote:

 

•

By mail. Complete and mail the enclosed proxy card in the enclosed postage prepaid envelope. Your proxy will be voted in accordance with your instructions. If you sign the proxy card but do not specify how you want your shares voted, they will be voted as recommended by our board of directors.

 

•

By Internet or telephone. Registered shareholders may vote on the Internet at www.envisionreports.com/orbc by following the instructions on your screen, or by telephone by dialing 1-800-652-VOTE (8683). Please have your proxy card ready when voting by Internet or telephone.

The telephone and Internet voting facilities for shareholders of record will close at 11:59 pm Eastern Time on July 7, 2021.

If you sign, date and return your proxy card without indicating how you wish to vote, your proxy will be voted “FOR” (i) the Merger Proposal, (ii) the Compensation Proposal and (iii) the Adjournment Proposal.

We encourage you to vote by proxy even if you plan on attending the special meeting virtually.

A failure to vote or an abstention will have the same effect as a vote “AGAINST” the approval of the Merger Proposal.

Shares of Company Stock Held in “Street Name”

If your shares are held in “street name” (that is, held through a brokerage firm, bank, broker-dealer or other similar organization or nominee), you must provide the brokerage firm, bank, broker-dealer or other similar organization or nominee with instructions on how to vote your shares and can do so as follows:

 

•

By mail. Complete and mail the enclosed voting instruction form in the enclosed postage prepaid envelope. Your bank, broker or other nominee will vote your shares in accordance with your instructions. If you sign the voting instruction form but do not specify how you want your shares voted, they will be voted as recommended by our board of directors..

 

•

By Internet or telephone. Please refer to the instructions on the enclosed voting instruction form to vote by Internet or telephone.

If you hold your shares of Common Stock in more than one account, you will receive a proxy card for each account. To ensure that all of your shares are voted, please sign, date and return the proxy card for each account. You should vote all of your accounts holding of Common Stock.

Without those instructions, your shares will not be voted, which will have the same effect as a vote “AGAINST” the Merger Proposal.

 

Q:	Can I revoke my proxy?

 

A:	Yes. You can revoke your proxy before the vote is taken at the special meeting. If you are a stockholder of record, you may revoke your proxy by notifying the Company in writing, in care of the Secretary, at

 

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ORBCOMM Inc., 395 W. Passaic Street, Rochelle Park, New Jersey 07662, or by submitting a new proxy with a later date, by using the telephone or Internet proxy submission procedures described above at any time up to 11:59 p.m., Eastern Time on July 7, 2021 or by completing, signing, dating and returning a new proxy card by mail to the Company. In addition, you may revoke your proxy by attending the special meeting and voting virtually; however, simply attending the special meeting will not cause your proxy to be revoked. Please note that if you want to revoke your proxy by mailing a new proxy card to the Company or by sending a written notice of revocation to the Company, you should ensure that you send your new proxy card or written notice of revocation in sufficient time for it to be received by the Company before the special meeting.

If you hold your shares in “street name” and you have instructed a broker, bank or other nominee to vote your shares, you should instead follow the instructions received from your broker, bank or other nominee to revoke your prior voting instructions. If you hold your shares in “street name,” you may also revoke a prior proxy by voting virtually at the special meeting if you obtain a legal proxy executed in your favor from your broker, bank or other nominee in order to be able to vote virtually at the special meeting.

 

Q:	What happens if I do not vote or if I abstain from voting on the proposals?

 

A:

The requisite number of shares to approve the Merger Proposal is based on the total number of shares of Company Stock outstanding on May 25, 2021, the record date, not just the shares that are voted. If you do not vote, or abstain from voting, on the Merger Proposal, or if you hold your shares in “street name” and fail to give voting instructions to your broker, bank or other nominee, it will have the same effect as a vote “AGAINST” the Merger Proposal.

The requisite number of shares to approve the other two proposals is based on the total number of shares of Company Stock present by virtual attendance or represented by proxy at the special meeting and entitled to vote thereon. If you abstain from voting on (i) the Compensation Proposal and (ii) the Adjournment Proposal, it will have the same effect as a vote “AGAINST” these proposals. If you do not return your proxy card or otherwise fail to vote your shares of Company Stock (including a failure of your broker, bank or other nominee to vote shares held on your behalf), it will have no effect on these proposals, assuming a quorum is present.

 

Q:	Will my shares of Company Stock held in “street name” or held in another form of record ownership be combined for voting purposes with shares I hold of record?

 

A:

No. Because any shares of Company Stock you may hold in “street name” will be deemed to be held by a different stockholder (that is, your broker, bank, or other nominee) than any shares of Company Stock you hold of record, any shares of Company Stock held in “street name” will not be combined for voting purposes with shares of Company Stock held of record. Similarly, if you own shares of Company Stock in various registered forms, such as jointly with your spouse, as trustee of a trust or as custodian for a minor, you will receive, and will need to sign and return, a separate proxy card for those shares of Company Stock because they are held in a different form of record ownership. Shares of Company Stock held by a corporation or business entity must be voted by an authorized officer of the entity. Please indicate title or authority when completing and signing the proxy card.

 

Q:	What does it mean if I get more than one proxy card or voting instruction form?

 

A:

If your shares of Company Stock are registered differently or are held in more than one account, you will receive more than one proxy card or voting instruction form. Please complete and return all of the proxy cards and voting instruction forms you receive (or submit each of your proxies by telephone or the Internet) to ensure that all of your shares of Company Stock are voted.

 

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Q:	What happens if I sell my shares of Company Stock before completion of the Merger?

 

A:	In order to receive the Merger Consideration, you must hold your shares of Company Stock through completion of the Merger. Consequently, if you transfer your shares of Company Stock before completion of the Merger, you will have transferred your right to receive the Merger Consideration.

The record date for shareholders entitled to vote at the special meeting is earlier than the completion of the Merger. If you transfer your shares of Company Stock after the record date but before the closing of the Merger, you will have the right to vote at the special meeting but not the right to receive the Merger Consideration.

 

Q:	If the Merger is completed, how do I obtain the Merger Consideration for my shares of Company Stock?

 

A:

Following the completion of the Merger, your shares of Company Stock will automatically be converted into the right to receive your portion of the Merger Consideration. After the Merger is completed, if your shares of Company Stock are evidenced by stock certificates, you will receive a letter of transmittal and related materials from the paying agent for the Merger with detailed written instructions for exchanging your shares of Company Stock evidenced by stock certificates for the Merger Consideration (without interest and subject to any required tax withholding). If your shares of Company Stock are held in “street name” by your broker, bank or other nominee, you may receive instructions from your broker, bank or other nominee as to what action, if any, you need to take to effect the surrender of your “street name” shares in exchange for the Merger Consideration (without interest and subject to any required tax withholding).

 

Q:	Should I send in my stock certificates or other evidence of ownership now?

 

A:

No. You should not return your stock certificates or send in other documents evidencing ownership of Company Stock with the proxy card. If the Merger is completed and if your shares of Company Stock are evidenced by stock certificates, the paying agent for the Merger will send you a letter of transmittal and related materials and instructions for exchanging your shares of Company Stock for the Merger Consideration (without interest and subject to any required tax withholding).

 

Q:	What is householding and how does it affect me?

 

A:

The SEC permits companies to send a single set of proxy materials to any household at which two or more shareholders reside, unless contrary instructions have been received, but only if the company provides advance notice and follows certain procedures. In such cases, each stockholder continues to receive a separate notice of the meeting and proxy card. Certain brokerage firms may have instituted householding for beneficial owners of stock held through brokerage firms. If your family has multiple accounts holding Company Stock, you may have already received a householding notification from your broker. Please contact your broker directly if you have any questions or require additional copies of this proxy statement. The broker will arrange for delivery of a separate copy of this proxy statement promptly upon your written or oral request. You may decide at any time to revoke your decision to household, and thereby receive multiple copies.

 

Q:	Where can I find more information about ORBCOMM?

 

A:	You can find more information about us from various sources described in the section of this proxy statement entitled “Where You Can Find Additional Information.”

 

Q:	Who will solicit and pay the costs of soliciting proxies?

 

A:	The ORBCOMM Board is soliciting your proxy, and we will bear the cost of soliciting proxies. This includes the charges and expenses of brokerage firms and others for forwarding solicitation material to

 

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beneficial owners of our outstanding Company Stock. ORBCOMM has retained Morrow Sodali LLC (which we refer to as “Morrow Sodali”), a proxy solicitation firm, to assist the ORBCOMM Board in the solicitation of proxies for the special meeting, and we expect to pay Morrow Sodali approximately $20,000, plus reimbursement of out-of-pocket expenses. Proxies may be solicited by mail, personal interview, email, telephone, or via the Internet by Morrow Sodali or, without additional compensation, by certain of ORBCOMM’s directors, officers and employees.

 

Q:	Who can help answer my other questions?

 

A:

If you have more questions about the Merger or any of the other matters set forth in this proxy statement, or require assistance in submitting your proxy or voting your shares or need additional copies of this document or the enclosed proxy card, please contact Morrow Sodali, which is acting as the proxy solicitation agent and information agent for ORBCOMM in connection with the special meeting.

Morrow Sodali LLC

509 Madison Avenue

-New York, New York 10022

(800) 662-5200 (toll-fee)

(203) 658-9400

ORBC@investor.morrowsodali.com

or

ORBCOMM Inc.

Attn: Secretary

395 W. Passaic Street

Rochelle Park, NJ 07662

1-800-ORBCOMM (672-2666)

 

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CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS

Certain statements in this proxy statement constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements generally relate to our plans, objectives and expectations for future events and include statements about our expectations, beliefs, plans, objectives, intentions, assumptions and other statements that are not historical facts. Such forward-looking statements, including those concerning ORBCOMM’s expectations, are subject to known and unknown risks and uncertainties, which could cause actual results to differ materially from the results, projected, expected or implied by the forward-looking statements, some of which are beyond ORBCOMM’s control, that may cause ORBCOMM’s actual results, performance or achievements, or industry results, to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. Among others, the following uncertainties and other factors could cause actual results to differ from those set forth in the forward-looking statements: (i) the risk that the transaction may not be consummated in a timely manner, if at all; (ii) the risk that the transaction may not be consummated as a result of buyer’s failure to comply with its covenants and that, in certain circumstances, ORBCOMM may not be entitled to a termination fee; (iii) the risk that the definitive merger agreement may be terminated in circumstances that require ORBCOMM to pay a termination fee; (iv) risks related to the diversion of management’s attention from ORBCOMM’s ongoing business operations; (v) risks regarding the failure of the buyer to obtain the necessary financing to complete the transaction; (vi) the effect of the announcement of the transaction on ORBCOMM’s business relationships (including, without limitation, customers), operating results and business generally; and (vii) risks related to obtaining the requisite consents to the transaction, including, without limitation, the timing (including possible delays) and receipt of regulatory approvals from governmental entities (including any conditions, limitations or restrictions placed on these approvals) and the risk that one or more governmental entities may deny approval. In addition, specific consideration should be given to various factors described in Part I, Item 1A. “Risk Factors” and Part II, Item 7. “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and elsewhere in our Annual Report on Form 10-K, and other documents, on file with the SEC. ORBCOMM undertakes no obligation to publicly revise any forward-looking statements or cautionary factors, except as required by law.

 

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THE COMPANIES

ORBCOMM Inc.

ORBCOMM Inc. is a Delaware corporation. ORBCOMM is a global provider of industrial IoT solutions, including network connectivity, devices, device management and web reporting applications. The Company is publicly listed on the NASDAQ under the symbol “ORBC”.

ORBCOMM’s principal executive offices are located at 395 W. Passaic Street, Rochelle Park, New Jersey 07662 and its telephone number is 1-800-ORBCOMM (672-2666).

A detailed description of the Company’s business is contained in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the SEC on February 25, 2021, which is incorporated by reference into this proxy statement. For more information, see the section of this proxy statement entitled “Where You Can Find Additional Information.”

GI DI Orion Acquisition Inc

GI DI Orion Acquisition Inc is a Delaware corporation and an affiliate of investment funds advised by GI Partners. Parent was formed solely for the purpose of entering into the Merger Agreement and consummating the transactions contemplated by the Merger Agreement and it has not carried on any activities on or prior to the date of this proxy statement, except for activities incidental to its formation and activities in connection with its acquisition of ORBCOMM.

Parent’s principal executive offices are located at 188 The Embarcadero, Suite 700, San Francisco, CA 94105 and its telephone number is 1-415-688-4800.

GI DI Orion Merger Sub Inc

GI DI Orion Merger Sub Inc is a Delaware corporation and a wholly owned subsidiary of Parent that will function as the merger subsidiary in the Merger. Merger Sub was formed solely for the purpose of entering into the Merger Agreement and consummating the transactions contemplated by the Merger Agreement and it has not carried on any activities on or prior to the date of this proxy statement, except for activities incidental to its formation and activities in connection with Parent’s acquisition of ORBCOMM. Upon completion of the Merger, Merger Sub will merge with and into ORBCOMM and Merger Sub will cease to exist.

Merger Sub’s principal executive offices are located at 188 The Embarcadero, Suite 700, San Francisco, CA 94105 and its telephone number is 1-415-688-4800.

 

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THE SPECIAL MEETING

We are furnishing this proxy statement to the Company’s shareholders as part of the solicitation of proxies by the ORBCOMM Board for use at the special meeting or any adjournment or postponement thereof. This proxy statement provides the Company’s shareholders with the information they need to know to be able to vote or instruct their vote to be cast at the special meeting or any adjournment or postponement thereof.

Date and Time of and Virtual Access to Special Meeting

This proxy statement is being furnished to our shareholders as part of the solicitation of proxies by the ORBCOMM Board for use at the special meeting to be held virtually, on July 8, 2021, at 9:00 a.m. Eastern Time, or at any adjournment or postponement thereof.

For information regarding attending the special meeting, see “The Special Meeting — Voting; Proxies; Revocation — Attendance.”

Purposes of the Special Meeting

At the special meeting, ORBCOMM shareholders will be asked to consider and approve the following proposals:

 

•

the Merger Proposal to adopt the Agreement and Plan of Merger, dated as of April 7, 2021, by and among ORBCOMM Inc., GI DI Orion Acquisition Inc, and GI DI Orion Merger Sub Inc, as the same may be amended;

 

•

the Compensation Proposal, as disclosed in the section of this proxy statement entitled “The Merger — Interests of the Company’s Directors and Executive Officers in the Merger — Quantification of Potential Payments and Benefits to the Company’s Named Executive Officers in Connection with the Merger”; and

 

•

the Adjournment Proposal.

Our shareholders must approve the Merger Proposal for the Merger to occur. If our shareholders fail to approve the Merger Proposal, the Merger will not occur. A copy of the Merger Agreement is attached as Annex A to this proxy statement and is incorporated by reference herein in its entirety, and certain provisions of the Merger Agreement are described in the section of this proxy statement entitled “The Merger Agreement.”

The vote on the Compensation Proposal is a vote separate and apart from the vote on the Merger Proposal. Accordingly, you may vote to adopt the Merger Agreement and vote not to approve the Compensation Proposal and vice versa. Because the vote on the Compensation Proposal is advisory only, it will not be binding on either ORBCOMM or Parent. Accordingly, if the Merger Proposal is approved and the Merger is completed, the compensation will be payable, subject only to the conditions applicable thereto under the applicable compensation agreements and arrangements, regardless of the outcome of the non-binding, advisory vote of ORBCOMM shareholders.

We do not expect that any matters other than the proposals set forth above will be brought before the special meeting.

This proxy statement and the enclosed form of proxy are first being mailed to our shareholders on or about May 27, 2021.

Record Date, Notice and Quorum

The holders of record of Company Stock as of the close of business on May 25, 2021, the record date for the special meeting, are entitled to receive notice of and to vote at the special meeting. As of the close of business on

 

24

the record date, 79,543,070 shares of Common Stock and 43,102 shares of Preferred Stock were outstanding and entitled to vote at the special meeting. The presence at the special meeting, by virtual attendance or represented by proxy, of the holders of a majority of the voting power of the Company Stock issued and outstanding and entitled to vote at the special meeting will constitute a quorum for purposes of the special meeting. Once a share is represented at the special meeting, it will be counted for purposes of determining whether a quorum is present at the special meeting. However, if a new record date is set for an adjourned special meeting, a new quorum will have to be established. Proxies received but marked as abstentions will be included in the calculation of the number of shares considered to be present at the special meeting.

Required Vote

Each shareholder is entitled to one vote for each share of our Common Stock and 1.66611 votes for each share of our Preferred Stock outstanding as of the close of business on the record date.

For the Company to complete the Merger, ORBCOMM shareholders holding a majority of the voting power of our Company Stock outstanding as of the close of business on the record date must vote “FOR” the Merger Proposal. An abstention with respect to the Merger Proposal, or a failure to vote your shares of Company Stock (including a failure to instruct your broker, bank or other nominee to vote shares held on your behalf), will have the same effect as a vote “AGAINST” the Merger Proposal.

Approval of each of (i) the Compensation Proposal and (ii) the Adjournment Proposal requires the affirmative vote of the holders of a majority of the voting power of our Company Stock present by virtual attendance or represented by proxy at the special meeting and entitled to vote thereon, but is not a condition to the completion of the Merger. An abstention with respect to either proposal will have the same effect as a vote “AGAINST” these proposals. A failure to return your proxy card or otherwise vote your shares of Company Stock (including a failure to instruct your broker, bank or other nominee to vote shares held on your behalf), will have no effect on these proposals, assuming a quorum is present.

Stock Ownership and Interests of Certain Persons

As of the close of business on the record date, directors and executive officers of the Company were entitled to vote 4,720,745 shares of Common Stock, or approximately 5.9% of the shares of Common Stock issued and outstanding on that date and entitled to vote at the special meeting and 0 shares of Preferred Stock, or 0% of the shares of Preferred Stock issued and outstanding on that date and entitled to vote at the special meeting. The Company’s directors and executive officers have informed us that they intend to vote their shares in favor of the Merger Proposal and the other proposals to be considered at the special meeting, although they have no obligation to do so.

Voting; Proxies; Revocation

Voting by Attending the Special Meeting

Shareholders will be able to vote by virtual attendance at the special meeting by visiting www.meetingcenter.io/256278191, Password: ORBC2021. Shareholders of record do not need to register to attend the special meeting virtually on the internet. If you are not a shareholder of record, but instead hold your shares of Company Stock in “street name” through a broker, bank or other nominee, you must register in advance to attend the special meeting virtually on the internet.

Attending the Special Meeting

The special meeting will be a completely virtual meeting of stockholders, which will be conducted exclusively by webcast. No physical meeting will be held. You will be able to attend the special meeting online and vote your shares online by visiting www.meetingcenter.io/256278191, Password: ORBC2021.

 

25

To participate in the special meeting, you will need to review the information included on your Notice of Special Meeting, on your proxy card or on the instructions that accompanied your proxy materials and use your meeting access control number. The password for the meeting is ORBC2021.

If you hold your shares through an intermediary, such as a brokerage firm, bank, broker-dealer or other similar organization or nominee, you must register in advance using the instructions below.

The online meeting will begin promptly at 9:00 a.m., Eastern Time. We encourage you to access the meeting prior to the start time leaving ample time for the check in. Please follow the registration instructions as outlined in this proxy statement.

Registering to Attend the Special Meeting

Registered Shareholders

If you are a registered shareholder (i.e., you hold your ORBCOMM shares through our transfer agent, Computershare), you do not need to register to attend the special meeting virtually on the Internet. Please follow the instructions on the notice or proxy card that you received.

Beneficial Shareholders Holding Through Intermediaries

If you hold your ORBCOMM shares in “street name” (that is, held through a brokerage firm, bank, broker-dealer or other similar organization or nominee), you must register in advance to attend the special meeting virtually on the Internet. To register to attend the special meeting online by webcast you must submit proof of your proxy power (legal proxy) reflecting your ORBCOMM holdings along with your name and email address to Computershare. Requests for registration must be labeled as “Legal Proxy” and be received no later than 5:00 p.m., Eastern Time, on July 5, 2021.

After receipt of your registration materials by Computershare, you will receive a confirmation of your registration, together with a control number required to log in, by email from Computershare. Please note that for shareholders that hold their shares through an intermediary the control number to attend the Special Meeting is separate and different from the control number included in the proxy card shareholders receive from their intermediary for purposes of providing voting instructions to their proxy.

Requests for registration should be directed to the following:

By email

You should forward the email with the legal proxy from your broker, or attach an image of your legal proxy to an email sent, to legalproxy@computershare.com.

By mail

Computershare

ORBCOMM INC. Legal Proxy

P.O. Box 505008

Louisville, KY 40202

Providing Voting Instructions by Proxy

To ensure that your shares of Company Stock are voted at the special meeting, we recommend that you provide voting instructions promptly by proxy, even if you plan to attend the special meeting virtually.

 

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Shares of Company Stock Held by Record Holder

If you are a stockholder of record, you may provide voting instructions by proxy using one of the methods described below.

Submit a Proxy by Telephone or via the Internet. This proxy statement is accompanied by a proxy card with instructions for submitting voting instructions. You may vote by telephone by calling the toll-free number or via the Internet by accessing the Internet address specified on the enclosed proxy card. Your shares of Company Stock will be voted as you direct in the same manner as if you had completed, signed, dated and returned your proxy card, as described below.

Submit a Proxy Card. If you complete, sign, date and return the enclosed proxy card by mail so that it is received in time for the special meeting, your shares of Company Stock will be voted in the manner directed by you on your proxy card.

If you sign, date and return your proxy card without indicating how you wish to vote, your proxy will be voted in favor of each of the Merger Proposal, Compensation Proposal and the Adjournment Proposal. If you fail to return your proxy card or vote by telephone or via the Internet, and you are a holder of record on the record date, unless you attend the special meeting and vote virtually, your shares of Company Stock will not be considered present at the special meeting for purposes of determining whether a quorum is present at the special meeting, which will have the same effect as a vote “AGAINST” the Merger Proposal and, assuming a quorum is present, will have no effect on the Compensation Proposal, or Adjournment Proposal.

Shares of Company Stock Held in “Street Name”

If your shares of Company Stock are held by a broker, bank or other nominee on your behalf in “street name,” your broker, bank or other nominee will send you instructions as to how to provide voting instructions for your shares. Many brokerage firms and banks have a process for their customers to provide voting instructions by telephone or via the Internet, in addition to providing voting instructions by a voting instruction form.

In accordance with applicable stock exchange rules, brokers, banks and other nominees that hold shares of Company Stock in “street name” for their customers do not have discretionary authority to vote the shares with respect to (i) the Merger Proposal, (ii) the Compensation Proposal, or (iii) the Adjournment Proposal. Accordingly, if brokers, banks or other nominees do not receive specific voting instructions from the beneficial owner of such shares, they cannot vote such shares with respect to these proposals. Therefore, unless you attend the special meeting virtually with a properly executed legal proxy from your broker, bank or other nominee, your failure to provide instructions to your broker, bank or other nominee will result in your shares of Company Stock not being present at the meeting and not being voted on any of the proposals. As a result, a failure to vote your shares of Company Stock (including a failure to instruct your broker, bank or other nominee to vote shares held on your behalf) will have the same effect as a vote “AGAINST” the Merger Proposal, but it will have no effect on the other proposals, assuming a quorum is present.

Revocation of Proxies

Any person giving a proxy pursuant to this solicitation has the power to revoke and change it before it is voted. If you are a stockholder of record, you may revoke your proxy before the vote is taken at the special meeting by:

 

•

submitting a new proxy with a later date, by using the telephone or Internet proxy submission procedures described above at any time up to 11:59 p.m. Eastern Time on July 7, 2021, or by completing, signing, dating and returning a new proxy card by mail to the Company;

 

•

virtually attending and voting at the special meeting; or

 

27

•

delivering a written notice of revocation by mail to the Company, in care of the Secretary, at ORBCOMM Inc., 395 W. Passaic Street, Rochelle Park, New Jersey 07662.

Please note, however, that only your last-dated proxy will count. Attending the special meeting without taking one of the actions described above will not in itself revoke your proxy. Please note that if you want to revoke your proxy by mailing a new proxy card to the Company or by sending a written notice of revocation to the Company, you should ensure that you send your new proxy card or written notice of revocation in sufficient time for it to be received by the Company before the special meeting.

If you hold your shares in “street name” through a broker, bank or other nominee, you will need to follow the instructions provided to you by your broker, bank or other nominee in order to revoke your proxy or submit new voting instructions. If you hold your shares in “street name,” you may also revoke a prior proxy by voting virtually at the special meeting if you obtain a legal proxy executed in your favor from your broker, bank or other nominee in order to be able to vote virtually at the special meeting.

Abstentions

An abstention occurs when a stockholder attends the special meeting, either virtually or represented by proxy, but abstains from voting. Abstentions will be included in the calculation of the number of shares of Company Stock present or represented at the special meeting for purposes of determining whether a quorum has been achieved.

Abstaining from voting will have the same effect as a vote “AGAINST” the Merger Proposal, a vote “AGAINST” the Compensation Proposal and a vote “AGAINST” the Adjournment Proposal.

Solicitation of Proxies

The ORBCOMM Board is soliciting your proxy, and we will bear the cost of soliciting proxies. This includes the charges and expenses of brokerage firms and others for forwarding solicitation material to beneficial owners of our outstanding Company Stock. The Company has retained Morrow Sodali, a proxy solicitation firm, to assist the ORBCOMM Board in the solicitation of proxies for the special meeting, and we expect to pay Morrow Sodali approximately $20,000, plus reimbursement of out-of-pocket expenses. Proxies may be solicited by mail, personal interview, email, telephone, or via the Internet by Morrow Sodali or, without additional compensation, by certain of ORBCOMM’s directors, officers and employees.

Adjournments and Postponements

Although it is not currently expected, the special meeting may be adjourned or postponed if necessary or appropriate, including to solicit additional proxies, if there are insufficient votes at the time of the special meeting to approve the Merger Proposal or in the absence of a quorum.

Subject to certain limitations in the Merger Agreement, the Company may postpone or adjourn to a later date the special meeting (i) with the written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), (ii) for the absence of a quorum, (iii) to allow reasonable additional time to solicit additional proxies if the Company has not received proxies representing a sufficient number of shares of Common Stock to adopt the Merger Agreement, whether or not a quorum is present, (iv) if required by applicable law or (v) to allow reasonable additional time for the filing and dissemination of any supplemental or amended disclosure; provided, further, that in no event shall the special meeting be postponed or adjourned beyond a date that is more than thirty (30) days after the date on which the special meeting was originally scheduled without the prior written consent of Parent.

 

28

Other Information

You should not return your stock certificates or send in other documents evidencing ownership of Company Stock with the proxy card. If the Merger is completed and your shares of Company Stock are evidenced by stock certificates, the paying agent for the Merger will send you a letter of transmittal and related materials and instructions for exchanging your shares of Company Stock evidenced by stock certificates for the Merger Consideration (without interest and subject to any required tax withholding).

 

29

THE MERGER

The description of the Merger in this section and elsewhere in this proxy statement is qualified in its entirety by reference to the complete text of the Merger Agreement, a copy of which is attached as Annex A and is incorporated by reference into this proxy statement. This summary does not purport to be complete and may not contain all of the information about the Merger that is important to you. You are encouraged to read the Merger Agreement carefully and in its entirety.

Certain Effects of the Merger

Pursuant to the terms of the Merger Agreement, if the Merger Proposal is approved by the Company’s shareholders and the other conditions to the closing of the Merger are satisfied or waived, Merger Sub will be merged with and into the Company, with the Company surviving the merger as a wholly owned subsidiary of Parent.

Upon the terms and subject to the conditions of the Merger Agreement, at the Effective Time, each share of Common Stock and Preferred Stock issued and outstanding immediately before the Effective Time (excluding (i) shares held by the Company as treasury stock or held by Parent or Merger Sub or any entity of which Parent is a subsidiary (such shares, “Cancelled Shares”), (ii) shares held by any wholly owned subsidiary of the Company or wholly owned subsidiary of Parent (other than Merger Sub) (the “Converted Shares”) and (iii) shares held by shareholders of the Company who have not voted in favor of the adoption of the Merger Agreement or consented thereto in writing and who have properly exercised appraisal rights with respect thereto in accordance with, and who have complied with, Section 262 of the DGCL (the “Dissenting Shares”)) will be converted into the right to receive (x) $11.50 per share of Common Stock and (y) for each share of Preferred Stock, an amount equal to the sum of (1) the product of (x) the Common Stock Merger Consideration multiplied by (y) 1.66611, plus (2) an amount equal to (x) the number of shares of Preferred Stock issuable in respect of any accrued and unpaid dividends thereon as of the Effective Time, multiplied by (y) the Common Stock Merger Consideration multiplied by (z) 1.66611, in each case in cash, without interest and subject to any required tax withholding.

The Common Stock is currently registered under the Exchange Act and is listed on the NASDAQ under the symbol “ORBC.” Upon completion of the Merger, the Company will cease to be a publicly traded company and will be an indirect, wholly owned subsidiary of Parent. Following the completion of the Merger, the Common Stock will be delisted from the NASDAQ and deregistered under the Exchange Act, following which the Company will no longer be required to file periodic reports with the SEC with respect to its Common Stock in accordance with applicable law, rules and regulations. The Company will therefore become a privately held company, indirectly wholly owned by Parent.

Background of the Merger

The ORBCOMM Board and management of the Company regularly review and discuss the Company’s strategic business plan and evaluate potential strategic and financial opportunities to strengthen the Company’s business and enhance stockholder value. By 2020, the Company had completed its integration of a number of acquisitions, and the ORBCOMM Board and Company management were focused on the next step of the Company’s evolution, which it believed required growth and increased scale.

The ORBCOMM Board believed that one way to achieve its objectives might be through a partnership with a financial sponsor that could bring relevant industry experience and a growth-oriented investment philosophy. Accordingly, during the spring and summer of 2020, with the assistance of Raymond James & Associates, Inc. (“Raymond James”) serving as the Company’s financial advisor, ORBCOMM contacted eight private equity firms to assess their interest in a potential strategic transaction. (GI Partners was not one of the firms contacted.) Of the eight parties contacted, seven had introductory meetings with management, and three entered into customary nondisclosure agreements with the Company. All three nondisclosure agreements contained

 

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customary “standstill” provisions that terminated upon the execution of a definitive acquisition agreement by the Company, and accordingly did not prohibit any of the contacted parties from making a superior acquisition proposal to acquire the Company during the “go-shop” period described below. None included “don’t ask, don’t waive” provisions. One of the parties that entered into a nondisclosure agreement expressed interest in a potential Private Investment in Public Equity (“PIPE”) transaction; another verbally inquired into whether the Company would have interest in a potential acquisition of the Company at a price in the range of $5.00 per share of Common Stock, payable in cash. The Company declined to pursue either proposal, among other reasons because it did not believe that either would result in a transaction that was in the best interest of its stockholders in light of the prevailing economic environment at the time.

At the same time, at the ORBCOMM Board’s direction, the Company’s management team developed a multi-year business plan focused on driving long-term organic growth. In the fall of 2020, Company management prepared a five-year strategic business plan for the Company that included certain nonpublic, internal financial analyses, estimates and forecasts relating to the Company, which was reviewed by the ORBCOMM Board in October 2020. Company management also prepared the fiscal year 2021 budget, which was approved by the ORBCOMM Board in December 2020. The Five-Year Plan (as defined below under the caption “— Certain ORBCOMM Unaudited Prospective Financial Information”) was subsequently updated by Company management in February 2021 in connection with the transaction. For a discussion of the Five-Year Plan, including related updates thereto, and the related Company Extrapolations (as defined below under the caption “— Certain ORBCOMM Unaudited Prospective Financial Information”) please see below under the caption “— Certain ORBCOMM Unaudited Prospective Financial Information”.

On December 4, 2020, PJT Partners LP (“PJT Partners”) introduced representatives of GI Partners and members of Company management to each other via email. PJT Partners provided the introduction because it was aware, through previous discussions with GI Partners, that GI Partners’ Data Infrastructure team had specific interest in the IoT, enterprise awareness and fleet telematics industries, and ORBCOMM had expressed a willingness to meet with relevant financial sponsors. Representatives of GI Partners and Company management held an initial call on December 11, 2020, to introduce members of the respective teams and discuss the Company’s business and operations at a high level based on publicly available information, as well as GI Partners’ experience and potential interest.

On December 18, 2020, GI Partners signed a non-disclosure agreement with the Company (the “GI NDA”), which contained customary provisions relating to the provision of nonpublic information to GI Partners in connection with GI Partners’ preliminary due diligence and evaluation of a potential transaction with the Company, as well as customary standstill restrictions (which standstill restrictions expired upon the Company’s execution of a definitive acquisition agreement). Following execution of the GI NDA, during January 2020, ORBCOMM provided representatives of GI Partners with certain business and financial information concerning the Company.

On January 5, 2021, representatives of GI Partners and Company management met via videoconference for an initial due diligence meeting, during which members of Company management provided an overview of the Company’s operations, strategy and financial position. Following this discussion, Mr. M. Eisenberg consulted with each of the members of the ORBCOMM Board and they determined to engage in further exploratory conversations with GI Partners. During the next several weeks, representatives of GI Partners and Company management met periodically via videoconference to discuss various aspects of GI Partners’ due diligence review of the Company, including its operations, product portfolio and roadmap, business unit and customer trends, unit economics, cost structure, financial forecast and growth strategy.

On February 4, 2021, GI Partners submitted a non-binding letter of intent (“LOI”) to ORBCOMM containing a proposal to acquire the Company at a price of $10.50 per share of Common Stock, payable in cash. The LOI also proposed a 30-day exclusivity period (subject to an automatic 15-day extension if the parties were continuing to work together in good faith) for completion of due diligence, to obtain financing commitments and for

 

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negotiation and finalization of definitive documentation. The LOI stated that GI Partners’ proposal would expire on February 10, 2021. Company management provided the ORBCOMM Board with a copy of the LOI promptly upon receipt and called a special meeting of the ORBCOMM Board to discuss the proposal. Later that day, PJT Partners provided to the ORBCOMM Board a letter that described PJT Partners’ prior relationships with GI Partners, which are summarized in the section of this proxy statement entitled “— Opinion of PJT Partners LP — General”.

On February 6, 2021, the ORBCOMM Board held a special meeting via videoconference, with representatives of Milbank LLP (“Milbank”), the Company’s legal advisor, and PJT Partners, each in attendance by invitation of the ORBCOMM Board. At the meeting, representatives of PJT Partners and Company management provided the ORBCOMM Board with an overview of GI Partners, the diligence process that GI Partners had conducted to date, and the terms of the proposed transaction as set forth in the LOI. Milbank also provided the ORBCOMM Board with an overview of its fiduciary duties in connection with its evaluation of strategic alternatives. Following PJT Partners’ presentation, the ORBCOMM Board excused PJT Partners and discussed the process for evaluating and selecting a financial advisor to advise the Company with respect to the LOI and potential strategic alternatives. The ORBCOMM Board determined to interview multiple firms, including PJT Partners, prior to selecting a financial advisor.

On February 11, 2021, the ORBCOMM Board interviewed multiple potential financial advisors via videoconference, including PJT Partners and Raymond James. At a special meeting of the ORBCOMM Board held via videoconference following the interviews, with Milbank in attendance, the ORBCOMM Board resolved to engage PJT Partners as its non-exclusive financial advisor in connection with its evaluation of the LOI as well as other potential strategic alternatives. ORBCOMM and PJT Partners executed an engagement letter on February 15, 2021.

On February 17, 2021, the ORBCOMM Board held a special meeting via videoconference, with representatives from Milbank and PJT Partners in attendance, to discuss the process and basis for the ORBCOMM Board’s evaluation of the LOI and to review and discuss other strategic alternatives available to the Company. The ORBCOMM Board and PJT Partners discussed the Five-Year Plan (as defined in the section of this proxy statement entitled “The Merger — Certain ORBCOMM Unaudited Prospective Financial Information), and the updates thereto provided by Company management. PJT Partners described for the ORBCOMM Board the financial analyses that PJT Partners would undertake in its evaluation of the LOI. The ORBCOMM Board agreed that the Five-Year Plan, as updated to date, was appropriate for PJT Partners to use as a basis for its financial analyses and adjourned to permit PJT Partners to conduct its preliminary financial analyses.

The ORBCOMM Board reconvened on February 19, 2021, again with representatives from Milbank and PJT Partners in attendance. PJT Partners presented its preliminary financial analyses to the ORBCOMM Board regarding the proposed price of $10.50 per share of Common Stock contained in the LOI. Representatives from PJT Partners and Milbank also discussed with the ORBCOMM Board several procedural options for evaluating a potential acquisition, including a comparison of the relative benefits and drawbacks of an auction process compared to a post-signing “go-shop” process. Representatives from PJT Partners and the ORBCOMM Board discussed that, in light of the Company’s earlier discussions with other parties described above, an auction process likely would not offer a meaningfully better chance of receiving a competing bid than a post-signing go-shop process, and conversely that continuing negotiations with GI Partners likely would provide the Company with greater certainty, and greater likelihood of engagement by GI Partners, than it would have in an auction process. Following this discussion, the ORBCOMM Board instructed PJT Partners to convey to GI Partners that the ORBCOMM Board did not believe that a price of $10.50 per share of Common Stock represented the full value of the Company, but that it invited GI Partners to submit a revised LOI at a higher price, noting that a post-signing go-shop period would be a necessary term of any definitive transaction agreement. Representatives of PJT Partners communicated this message to representatives of GI Partners and its financial advisor, Evercore Partners (“Evercore”) promptly following the meeting.

 

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Following telephonic and email discussions between representatives of GI Partners and PJT Partners regarding the ORBCOMM Board’s response to the initial LOI, as well as the Company’s reported fourth quarter 2020 and annual 2020 earnings results, GI Partners submitted a revised letter of intent to Company management on February 25, 2021 (the “Revised LOI”). The terms of the transaction contemplated by the Revised LOI included a proposal to acquire the Company at a price of $11.00 per share of Common Stock, payable in cash, and a go-shop period of 20 days following signing of the merger agreement. In the Revised LOI, GI Partners again requested a 30-day exclusivity period, with an automatic 15-day extension if the parties were continuing to work together in good faith toward completion of the transaction.

On February 27, 2021, the ORBCOMM Board held a special meeting via videoconference, with representatives from Milbank and PJT Partners in attendance. At the meeting, PJT Partners discussed with the ORBCOMM Board the terms of the Revised LOI, and in particular the proposed price of $11.00 per share of Common Stock, based on a range of preliminary financial analyses. Following a discussion of potential alternatives in response to the Revised LOI, the ORBCOMM Board resolved to temporarily adjourn the meeting to permit the directors additional time to consider the Revised LOI and potential alternatives.

The ORBCOMM Board reconvened on February 28, 2021, and representatives from PJT Partners again presented preliminary financial analyses of GI Partners’ proposal set forth in the Revised LOI. Representatives from Milbank discussed with the ORBCOMM Board the exclusivity terms in the Revised LOI and potential terms of a counterproposal, including a restriction on GI Partners’ ability to engage financing sources on an exclusive basis. Representatives from Milbank also discussed with the ORBCOMM Board the terms of a go-shop provision that could be included in a potential counterproposal. Following this discussion, the ORBCOMM Board authorized PJT Partners to make a counterproposal on behalf of the Company to GI Partners, reflecting, among other things, a price of $12.25 per share of Common Stock, payable in cash, agreement on a 30-day exclusivity period subject to a prohibition on engaging financing sources on an exclusive basis, a go-shop period of 45 days, and a two-tiered break-up fee of 1.25% of aggregate equity value in connection with termination of the merger agreement in response to a superior bid resulting from the go-shop process and 2.75% of aggregate equity value if a termination fee was otherwise payable. The ORBCOMM Board then adjourned the meeting pending GI Partners’ response to the Company’s counterproposal.

PJT Partners communicated the terms of the Company’s counterproposal to representatives of GI Partners and Evercore on February 28, 2021 promptly following the meeting. Later that day, GI Partners informed PJT Partners that it had held an investment committee meeting to discuss the Company’s counterproposal and, following that meeting, was authorized to revise the terms of its proposal to include, among other things, a price of $11.25 per share of Common Stock, payable in cash, a 30-day go-shop period, and a two-tiered break-up fee of 2% of aggregate equity value in connection with termination in response to a superior bid resulting from the go-shop process and 4% of aggregate equity value if a termination fee was otherwise payable. PJT Partners promptly communicated the same to Company management, who informed the ORBCOMM Board and reconvened the special meeting.

On March 1, 2021, the ORBCOMM Board reconvened the special meeting to discuss GI Partners’ February 28^th proposal, again with representatives from PJT Partners and Milbank present. Following discussion of GI Partners’ revised proposal, and in light of prior discussions regarding PJT Partners’ preliminary financial analyses, the ORBCOMM Board directed PJT Partners to communicate a counterproposal to GI Partners, reflecting a price of $11.75 per share of Common Stock, payable in cash, a go-shop period of 35 days, and a two-tiered break-up fee of 1.75% of aggregate equity value in connection with termination of the merger agreement in response to a superior bid resulting from the go-shop process and 3.5% of aggregate equity value if a termination fee was otherwise payable. The ORBCOMM Board further resolved to authorize the Company to execute a 30-day exclusivity agreement with GI Partners on terms previously discussed if GI Partners agreed to a price of at least $11.50 per share of Common Stock, payable in cash. PJT Partners communicated the terms of the Company’s counterproposal to representatives of GI Partners and Evercore promptly following the meeting.

 

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Following this communication, representatives from PJT Partners, in consultation with Milbank and Company management, engaged in further discussion with representatives of GI Partners and Evercore regarding the proposed transaction terms. On March 3, 2021, GI Partners updated its revised proposal to include a price of $11.50 per share of Common Stock, payable in cash, and a 30-day go-shop period, and agreed to ORBCOMM’s counterproposal regarding a two-tiered break-up fee of 1.75% and 3.5% of aggregate equity value. Following agreement on these key terms, the parties executed an exclusivity agreement.

Later on March 3, 2021, following execution of the exclusivity agreement, representatives from GI Partners, Company management and PJT Partners met telephonically to discuss the remaining due diligence to be completed by GI Partners in connection with its evaluation of the transaction. Over the course of the following weeks, representatives from the Company, Milbank and PJT Partners coordinated to respond to due diligence requests by posting relevant documentation to the virtual data room and by meeting telephonically with representatives of GI Partners and its advisors, including in connection with the preparation and finalization of the disclosure schedules delivered by the Company in connection with its representations and warranties in the Merger Agreement.

During this period, in anticipation of the post-signing go-shop process, the ORBCOMM Board determined it would be advisable to also engage Raymond James as its nonexclusive financial advisor to allow the Company to engage with a broader range of potential bidders during the go-shop period and also in light of Raymond James’ familiarity with the Company and its operations due to its previous engagements with the Company. Accordingly, ORBCOMM and Raymond James executed an engagement letter on March 9, 2021, pursuant to which Raymond James is entitled to receive a transaction fee equal to 0.125% of the transaction value that is payable upon the consummation of the merger and will be deducted from the aggregate transaction fee payable to PJT Partners, provided that a larger 0.25% fee would have applied if Raymond James were primarily responsible for soliciting a superior proposal that resulted in a purchase price (either as a result of an increased offer from GI Partners or from a competing bidder) of at least $12.00 per share of Common Stock. Following execution of the Raymond James engagement letter, Raymond James and PJT Partners began to coordinate regarding the go-shop process and the plan for related third party outreach.

On March 15, 2021, Milbank received an initial draft of the merger agreement from Simpson Thacher & Bartlett LLP (“Simpson Thacher”), counsel to GI Partners that, among other things, proposed a “reverse” termination fee equal to 4% of aggregate equity value, which would be payable by GI Partners if the conditions to GI Partners’ obligation to close under the merger agreement were satisfied but it failed to close. Milbank discussed the draft merger agreement with Company management over the course of the following days and, following discussion, sent a revised draft of the merger agreement to Simpson Thacher on March 22, 2021. Milbank’s revised draft included, among other things, a reverse termination fee of 7% of aggregate equity value, and limitations on the circumstances in which the Company would be required to pay a termination fee and/or reimburse GI Partners’ expenses.

On March 17 and March 18, 2021, members of Company management, including Mr. M. Eisenberg, met with representatives of GI Partners to discuss various matters related to the transaction and GI Partners’ ongoing diligence review of the Company, its operations, and strategy and plans for future growth. During these discussions, on March 18, 2021, representatives from GI Partners expressed to Mr. M. Eisenberg a desire to engage in a discussion regarding a potential go-forward role for Mr. M. Eisenberg following consummation of the Merger and a potential rollover of a portion of his equity in connection therewith. Mr. M. Eisenberg informed the representatives from GI Partners that he would inform the ORBCOMM Board of this request.

On March 23, 2021, the ORBCOMM Board held a special meeting via videoconference to receive an update from Company management and representatives from PJT Partners, Raymond James and Milbank regarding the status of the due diligence process and the negotiation of the definitive documentation for the transaction. At the meeting, representatives from Milbank provided the ORBCOMM Board with an overview of certain key issues in the merger agreement. The ORBCOMM Board and Company management also discussed GI Partners’ request

 

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for a 7-day extension of the exclusivity period in order to complete confirmatory due diligence as well as finalize financing commitments and other definitive documentation. The ORBCOMM Board agreed to authorize a 5-day extension through April 7, 2021. PJT Partners and Raymond James also discussed a proposed strategy and process for the go-shop period, including a preliminary list of specific parties that would be the subject of outreach.

Messrs. M. Eisenberg and J. Eisenberg and the representatives present from PJT Partners and Raymond James then left the meeting, and the remaining directors and representatives from Milbank engaged in a discussion regarding strategic and other considerations of the timing of discussions between Mr. M. Eisenberg and GI Partners and, following this consideration, requested that Milbank communicate to Simpson Thacher that the ORBCOMM Board had determined it advisable to receive further feedback on the revised draft of the merger agreement, including the amount of the reverse termination fee, before authorizing Mr. M. Eisenberg to engage in discussions regarding the potential terms of any rollover equity or other terms of continued employment. Representatives from Milbank communicated this position to Simpson Thacher promptly following the meeting.

On March 25, 2021, the parties executed an amendment to the exclusivity agreement that extended the exclusivity period to April 7, 2021. Also on March 25, 2021, Mr. M. Eisenberg presented to GI Partners’ Investment Committee regarding the Company’s business, strategic priorities, growth initiatives and future opportunities. That same day, Mr. C. Le Brun, Executive Vice President and Chief Legal and Human Resources Officer of the Company, and Mr. C. Milcos, Executive Vice President and Chief Financial Officer of the Company, met in person with representatives from GI Partners to discuss matters related to GI Partners’ ongoing diligence review of the Company and the Company’s strategy and plans for future growth.

On March 26, 2021, Simpson Thacher sent Milbank a revised draft of the merger agreement, which included a proposed reverse termination fee of 5% of aggregate equity value and revised proposals on the circumstances in which the Company termination fee and/or reimbursement of GI Partners’ expenses would be required. Also on March 26, 2021, representatives from Simpson Thacher informed Milbank during a telephonic discussion of the transaction that GI Partners would not seek to reach a binding agreement or non-binding understanding with Mr. M. Eisenberg prior to signing the definitive transaction documentation. As a result, although GI Partners presented Mr. M. Eisenberg with a preliminary proposal regarding the terms of his continued employment post-closing on April 5, 2021, Mr. M. Eisenberg did not respond to this proposal, and no understanding was reached between Mr. M. Eisenberg and GI Partners prior to signing of the merger agreement and other definitive documents.

Milbank discussed the draft of the merger agreement with Company management over the course of the following days and, following discussion, sent a revised draft of the merger agreement to Simpson Thacher on March 31, 2021. Milbank’s revised draft included, among other things, a reverse termination fee of 6% of aggregate equity value, and limitations on the situations in which the Company would be required to pay a termination fee and/or reimburse GI Partner expenses. Also on March 31, 2021, Simpson Thacher sent Milbank drafts of the debt commitment letter, equity commitment letter, and limited guaranty of Parent’s obligation to pay the reverse termination fee.

Over the course of the following week, representatives from Milbank engaged in ongoing discussions with representatives of Simpson Thacher and exchanged multiple drafts of the merger agreement (including the Company’s related disclosure schedules), financing commitment letters and limited guaranty, and continued the negotiations of key terms contained therein, including those related to the amount of the reverse termination fee, the Company termination fee triggers, provisions related to the go-shop period, and the parties’ respective obligation to seek and obtain regulatory approvals for the transaction. In addition, representatives from Milbank, PJT Partners and Company management continued the discussions regarding the terms of the equity and debt financing to be obtained by GI Partners in connection with the transaction, and in particular sought to confirm that the amount of the equity and debt financing would be sufficient in the aggregate to pay the aggregate Merger Consideration, all fees and expenses payable by Parent, Merger Sub or the Company in connection with the transaction, and to repay or refinance the Company’s existing indebtedness.

 

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Following these negotiations, on April 7, 2021, the ORBCOMM Board met via videoconference, with members of Company management and representatives from Milbank, PJT Partners and Raymond James in attendance. Representatives of Milbank again provided an overview of the ORBCOMM Board’s fiduciary duties and the status of negotiations, noting that the copies of the merger agreement and the other definitive documentation that had been provided to the ORBCOMM Board for review prior to the meeting were in substantially final form. At the request of the ORBCOMM Board, the representatives of PJT Partners reviewed its financial analyses in connection with the proposed Merger, following which, at the request of the ORBCOMM Board, representatives of PJT Partners then rendered its oral opinion to the ORBCOMM Board (which was subsequently confirmed in writing) that, as of the date thereof and based upon and subject to, among other things, the assumptions made, procedures followed, matters considered, and qualifications and limitations on the review undertaken by PJT Partners in connection with its opinion (which are stated in its written opinion), the Common Stock Merger Consideration to be received by the holders of Common Stock of the Company in the Merger was fair to such holders from a financial point of view. The full text of PJT Partners’ written opinion, which describes, among other things, the assumptions made, procedures followed, matters considered, and qualifications and limitations on the review undertaken by PJT Partners in connection with the opinion, is attached as Annex B. After discussion, the ORBCOMM Board unanimously determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, were advisable, fair to and in the best interests of the Company and the stockholders of the Company, and approved the Merger Agreement, the execution and delivery thereof and the performance by the Company of the transactions contemplated thereby, including the Merger.

Following the meeting, the parties executed the Merger Agreement and other definitive documentation in the evening of April 7, 2021, and GI Partners delivered to ORBCOMM executed copies of the Equity Commitment Letter, Debt Commitment Letter and Limited Guaranty. The parties issued a press release announcing the transaction prior to market open on April 8, 2021.

On April 8, 2021, following announcement of the transaction, representatives from PJT Partners and Raymond James initiated outreach to the list of parties previously discussed with the ORBCOMM Board and Company management in connection with the go-shop process.

During the go-shop period, PJT Partners and Raymond James affirmatively contacted 57 potential strategic and financial counterparties and received additional unsolicited inbound inquiries from two additional parties. Over the course of the next four weeks, nine parties executed non-disclosure agreements with the Company on substantially similar terms as the nondisclosure agreement between the Company and GI Partners (which nondisclosure agreements, as contemplated by the Merger Agreement, did not contain any standstill restrictions or otherwise prohibit the making of a superior acquisition proposal) and were provided information via a virtual data room, and Company management met with four of these parties in-person, telephonically, or via videoconference. None of the Company’s discussions with interested parties resulted in the submission of an Acquisition Proposal.

Reasons for the Merger; Recommendation of the ORBCOMM Board

The ORBCOMM Board evaluated, with the assistance of its legal and financial advisors, the Merger Agreement and the transactions contemplated thereby, including the Merger, and, on April 7, 2021, determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are advisable, fair to and in the best interests of the Company and the stockholders of the Company, approved the Merger Agreement and the execution and delivery thereof and performance of the transactions contemplated thereby, including the Merger, and determined to recommend to the ORBCOMM stockholders that they vote “FOR” the Merger Proposal.

In the course of making its unanimous determination to approve the Merger and to recommend that ORBCOMM stockholders vote “FOR” the Merger Proposal, the ORBCOMM Board considered the following positive factors (which are not necessarily in order of relative importance) relating to the Merger Agreement and the transactions

 

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contemplated thereby, including the Merger, each of which the ORBCOMM Board believed supported its decision:

 

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the current and historical market prices of the shares of Common Stock, including the market performance of the shares of Common Stock relative to those of other participants in the Company’s industry and general market indices, and the fact that the Merger Consideration of $11.50 per share represented a premium of approximately 52% to the closing price on the last trading day before the Merger Agreement was executed, and a premium of approximately 50% over the 90-day volume-weighted average share price (calculated using trading days) of Common Stock prior to the last trading day before the Merger Agreement was executed;

 

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the ORBCOMM Board’s understanding of the Company’s business, assets, financial condition and results of operations, its competitive position and historical and projected financial performance (including as reflected in the Company Projections (as defined in the section of this proxy statement entitled “The Merger — Certain ORBCOMM Unaudited Prospective Financial Information)), and the nature of the industry and regulatory environment in which the Company competes, and the prospects for substantially increasing stockholder value as a stand-alone company in excess of the Merger Consideration, given the risks and uncertainties in the Company Projections, the industry in which the Company operates, and general market conditions and trends (including the ongoing effects of COVID-19);

 

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the belief of the ORBCOMM Board that the Common Stock Merger Consideration represents the highest price per share of Common Stock that Parent was willing to pay and that the terms of the Merger Agreement include the most favorable terms to the Company, in the aggregate, to which Parent was willing to agree;

 

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the belief of the ORBCOMM Board that Parent was willing to pay the Common Stock Merger Consideration only if the Company agreed to the pre-signing exclusivity period, that in light of the Company’s previous discussions, the Company was unlikely to have a meaningfully better chance of receiving a competing bid during a pre-signing auction process than through a post-signing go-shop process, and that if the ORBCOMM Board had insisted on a pre-signing auction process or other pre-signing market check, GI Partners may have withdrawn its offer;

 

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the belief of the ORBCOMM Board that the $16.5 million termination fee payable in respect of a termination to enter into a transaction with an Excluded Party in connection with the go-shop period was reasonable under the circumstances and would not deter potentially interested parties from making a competing bid during the go-shop period;

 

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the oral opinion of PJT Partners rendered to the ORBCOMM Board on April 7, 2021, which was subsequently confirmed by delivery of a written opinion dated April 7, 2021, to the effect that, as of the date of such opinion, and based upon and subject to, among other things, the assumptions made, procedures followed, matters considered, and conditions, qualifications, limitations and other matters set forth therein, the Common Stock Merger Consideration to be received by the holders of Common Stock of the Company in the Merger was fair to such holders from a financial point of view, as more fully described in the section entitled “ — Opinion of PJT Partners LP”;

 

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the terms and conditions of the Merger Agreement and the other transaction documents, including:

 

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during the go-shop period, the Company was permitted to initiate, solicit or knowingly facilitate or knowingly encourage any inquiries, discussions or requests with respect to or the making of any proposal or offer that constitutes or would reasonably be expected to lead to an Acquisition Proposal, and could ultimately terminate the Merger Agreement to accept a Superior Proposal as long as the Company complied with certain procedures in the Merger Agreement, as described under the section of this proxy statement entitled “The Merger Agreement — Company Takeover Proposal; Non-Solicitation”;

 

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•

the requirement that the Merger Agreement be adopted by the holders of a majority of the voting power of the outstanding shares of Common Stock and Preferred Stock entitled to vote thereon;

 

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the fact that the Company has sufficient operating flexibility to conduct its business in the ordinary course prior to the consummation of the Merger, including with respect to its 2021 planned capital expenditures and to actions contemplated by its agreement with Inmarsat;

 

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the provision of the Merger Agreement allowing the ORBCOMM Board to withdraw or change its recommendation of the Merger Agreement and to terminate the Merger Agreement in certain circumstances relating to the presence of a Superior Proposal (or to effect a Change of Recommendation in response to an Intervening Event), subject to a termination fee of $32.9 million (or $16.5 million to enter into a transaction providing for a Superior Proposal with an Excluded Party);

 

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the absence of a financing condition in the Merger Agreement;

 

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that Parent had obtained committed debt financing for the transaction from reputable financial institutions and committed equity financing for the transaction from certain related entities of GI Partners that together provide financing in an amount sufficient to pay the aggregate Merger Consideration upon the consummation of the Merger, all fees and expenses payable by Parent, Merger Sub or the Company in connection with the transaction, and to repay or refinance the Company’s existing indebtedness;

 

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the Company’s ability, under circumstances specified in the Merger Agreement, to specifically enforce Parent’s obligation to enforce the equity financing commitments and to cause Parent to cause the Equity Investors to fund their respective contributions as contemplated by the Merger Agreement and the Equity Commitment Letter; and

 

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the requirement that, in the event of a failure of the Merger to be consummated under certain circumstances, Parent will pay the Company a termination fee of $51.8 million, and the guaranty of such obligation by related parties of GI Partners pursuant to the Limited Guaranty, as more fully described under the section of this proxy statement entitled “ — Termination Fee Limited Guaranty” and “The Merger Agreement — Parent Termination Fees”;

 

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the availability of appraisal rights under Delaware law to holders of shares of Company Stock who do not vote in favor of the adoption of the Merger Agreement and comply with all of the required procedures under Delaware law, which provides those eligible stockholders with an opportunity to have a Delaware court determine the fair value of their shares, which may be more than, less than, or the same as the amount such stockholders would have received under the Merger Agreement; and

 

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the ORBCOMM Board’s view that the terms of the Merger Agreement would be unlikely to deter interested third parties from making a Superior Proposal, including the Merger Agreement’s terms and conditions as they relate to changes in the recommendation of the ORBCOMM Board and the payment by the Company of $16.5 million in connection with the termination of the Merger Agreement under certain circumstances (see the sections of this proxy statement entitled “The Merger Agreement — Company Takeover Proposal; Non-Solicitation”).

In addition, the ORBCOMM Board also weighed the foregoing advantages and benefits against a variety of risks and other potentially negative factors (which are not necessarily in order of relative importance), including the following:

 

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the fact that the Company’s stockholders generally will have no ongoing equity participation in the Company following the Merger, and that such stockholders will cease to participate in the Company’s future earnings or growth, if any, or to benefit from increases, if any, in the value of shares of Common Stock, and will not participate in any potential future sale of the Company to a third party;

 

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the possibility that Parent could, at a later date, engage in unspecified transactions with respect to the Company including restructuring efforts, special dividends or the sale of some or all of the Company or

 

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its assets to one or more purchasers that could conceivably produce a higher aggregate value than that available to the Company’s stockholders in the Merger;

 

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the risk of incurring substantial expenses related to the Merger, including in connection with any litigation that may result from the announcement or pendency of the Merger;

 

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the risk that there can be no assurance that all conditions to the parties’ obligations to complete the Merger will be satisfied, and as a result, it is possible that the Merger may not be completed even if the Merger Agreement is adopted by the Company’s stockholders;

 

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the risk that certain regulatory approvals required to consummate the Merger, including approval from CFIUS, the FCC, and other specified foreign regulatory entities, may not be obtained;

 

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the risk that the debt financing contemplated by the Debt Commitment Letter or the equity financing contemplated by the Equity Commitment Letter will not be obtained, resulting in Parent not having sufficient funds to complete the transaction;

 

•

the Merger Agreement’s restrictions on the conduct of the Company’s business prior to the completion of the Merger, generally requiring the Company to conduct its business only in the ordinary course, subject to specific limitations, which may delay or prevent the Company from pursuing otherwise attractive business opportunities and taking other actions with respect to its business that the Company may consider advantageous pending completion of the Merger;

 

•

the fact that the receipt of cash in exchange for shares of Common Stock pursuant to the Merger will be a taxable transaction for U.S. federal income tax purposes;

 

•

the fact that certain of the Company’s directors and executive officers may have interests in the Merger that may be different from, or in addition to, those of the Company’s stockholders, as further described in the section of this proxy statement entitled “— Interests of the Company’s Directors and Executive Officers in the Merger”;

 

•

the fact that Parent is required to pay the Company a termination fee only if certain conditions are met, as further described in the section of this proxy statement entitled “The Merger Agreement — Parent Termination Fee”;

 

•

the requirement that the Company pay Parent a termination fee, under certain circumstances following termination of the Merger Agreement of $32.9 million, as further described in the section of this proxy statement entitled “The Merger Agreement — Company Termination Fee” , including a reduced fee of $16.5 million if the ORBCOMM Board terminates the Merger Agreement to enter into a transaction providing for a Superior Proposal with an Excluded Party; and

 

•

the fact that the announcement of the Merger Agreement and pendency of the Merger, or the failure to complete the Merger, may cause substantial harm to the Company’s relationships with its employees (including making it more difficult to attract and retain key personnel and the possible loss of key management, technical, sales and other personnel), vendors, customers and strategic partners and may divert management and employees’ attention away from the Company’s day-to-day business operations.

After considering the foregoing factors, the ORBCOMM Board concluded that, overall, the potentially beneficial factors relating to the Merger Agreement and the transactions contemplated thereby, including the Merger, outweighed the risks and potentially negative factors.

The foregoing discussion of the information and factors considered by the ORBCOMM Board is not exhaustive but is intended to reflect the material factors considered by the ORBCOMM Board in its consideration of the Merger Agreement and the transactions contemplated thereby, including the Merger. In view of the complexity and the large number of factors considered, the ORBCOMM Board, individually and collectively, did not quantify or assign any relative or specific weight to the various factors. Rather, the ORBCOMM Board based its

 

39

recommendation on the totality of the information presented to and considered by it. In addition, individual members of the ORBCOMM Board may have given different weights to different factors.

The foregoing discussion of the information and factors considered by the ORBCOMM Board is forward-looking in nature. This information should be read in light of the factors described under the caption “Cautionary Statement Concerning Forward-Looking Statements.”

THE ORBCOMM BOARD UNANIMOUSLY RECOMMENDS A VOTE “FOR” THE MERGER PROPOSAL.

Opinion of PJT Partners LP

PJT Partners was retained by ORBCOMM to act as its financial advisor in connection with the Merger and, upon the ORBCOMM Board’s request, to render its fairness opinion to the ORBCOMM Board in connection therewith. ORBCOMM selected PJT Partners to act as its financial advisor based on PJT Partners’ qualifications, expertise and reputation, its knowledge of ORBCOMM’s industry and its knowledge and understanding of the business and affairs of ORBCOMM.

At a meeting of the ORBCOMM Board on April 7, 2021, PJT Partners rendered its oral opinion, subsequently confirmed in its written opinion dated April 7, 2021, to the ORBCOMM Board to the effect that, as of such date and based upon and subject to, among other things, the assumptions made, procedures followed, matters considered and qualifications and limitations on the review undertaken by PJT Partners in connection with the opinion (which are stated in its written opinion), the Common Stock Merger Consideration to be received by the holders of Common Stock in the Merger was fair to such holders from a financial point of view.

The full text of PJT Partners’ written opinion delivered to the ORBCOMM Board, dated April 7, 2021, is attached as Annex B to this proxy statement and incorporated herein by reference. PJT Partners’ written opinion has been provided by PJT Partners at the request of the ORBCOMM Board and is subject to, among other things, the assumptions made, procedures followed, matters considered, and qualifications and limitations on the review undertaken by PJT Partners in connection with the opinion (which are stated therein). You are encouraged to read PJT Partners’ written opinion carefully and in its entirety. PJT Partners provided its opinion to the ORBCOMM Board, in its capacity as such, in connection with and for purposes of its evaluation of the Merger only, and PJT Partners’ opinion does not constitute a recommendation as to any action the ORBCOMM Board should take with respect to the Merger or how any ORBCOMM stockholder should vote or act with respect to the Merger or any other matter. The following is a summary of PJT Partners’ opinion and the methodology that PJT Partners used to render its opinion. This summary of the PJT Partners opinion contained in this proxy statement is qualified in its entirety by reference to the full text of PJT Partners’ written opinion.

In arriving at its opinion, PJT Partners, among other things:

 

•

reviewed certain publicly available information concerning the business, financial condition and operations of the Company;

 

•

reviewed certain internal information concerning the business, financial condition and operations of the Company prepared and furnished to PJT Partners by the management of the Company;

 

•

reviewed the Company Projections (as defined below under the caption “— Certain ORBCOMM Unaudited Prospective Financial Information”);

 

•

held discussions with members of senior management of the Company concerning, among other things, their evaluation of the Merger and the Company’s business, operating and regulatory environment, financial condition, prospects and strategic objectives;

 

•

reviewed the historical market prices and trading activity for Common Stock;

 

40

•

compared certain publicly available financial and stock market data for the Company with similar information for certain other companies that PJT Partners deemed to be relevant;

 

•

reviewed the publicly available financial terms of certain other business combinations that PJT Partners deemed to be relevant;

 

•

reviewed a draft, dated April 7, 2021, of the Merger Agreement; and

 

•

performed such other financial studies, analyses and investigations, and considered such other matters, as PJT Partners deemed necessary or appropriate for purposes of rendering its opinion.

In preparing its opinion, with the consent of the ORBCOMM Board, PJT Partners relied upon and assumed the accuracy and completeness of the foregoing information and all other information discussed with or reviewed by PJT Partners, without independent verification thereof. PJT Partners assumed, with the consent of the ORBCOMM Board, that the Company Projections and the assumptions underlying the Company Projections, and all other financial analyses, estimates and forecasts provided to PJT Partners by the Company’s management, have been reasonably prepared in accordance with industry practice and represent the Company management’s best then-currently available estimates and judgments as to the business and operations and future financial performance of the Company. PJT Partners assumed no responsibility for and expressed no opinion as to the Company Projections, the assumptions upon which they were based or any other financial analyses, estimates and forecasts provided to PJT Partners by the Company’s management. PJT Partners also assumed that there were no material changes in the assets, financial condition, results of operations, business or prospects of the Company since the respective dates of the last financial statements made available to PJT Partners. PJT Partners relied, with the consent of the ORBCOMM Board, on the Company management’s representations and/or projections regarding taxable income, standalone net operating loss utilization and other tax attributes of the Company. PJT Partners further relied, with the consent of the ORBCOMM Board, upon the assurances of the management of the Company that they were not aware of any facts that would make the information, including the Company Projections, provided by them inaccurate, incomplete or misleading.

PJT Partners was not asked to undertake, and did not undertake, an independent verification of any information provided to or reviewed by it, nor was it furnished with any such verification and it does not assume any responsibility or liability for the accuracy or completeness thereof. PJT Partners did not conduct a physical inspection of any of the properties or assets of the Company. PJT Partners did not make an independent evaluation or appraisal of the assets or the liabilities (contingent or otherwise) of the Company, nor was it furnished with any such evaluations or appraisals, nor did it evaluate the solvency of the Company under any applicable laws.

PJT Partners also assumed, with the consent of the ORBCOMM Board, that the final executed form of the Merger Agreement would not differ in any material respects from the draft reviewed by PJT Partners and that the consummation of the Merger would be effected in accordance with the terms and conditions of the Merger Agreement, without waiver, modification or amendment of any material term, condition or agreement material to PJT Partners’ analyses, and that, in the course of obtaining the necessary regulatory or third party consents and approvals (contractual or otherwise) for the Merger, no delay, limitation, restriction or condition would be imposed that would have an adverse effect on the Company or Parent or the contemplated benefits of the Merger that would be material to PJT Partners’ analyses. PJT Partners did not express any opinion as to any tax or other consequences that might result from the Merger, nor its opinion address any legal, tax, regulatory or accounting matters, as to which PJT Partners understood that the Company obtained such advice as it deemed necessary from qualified professionals. PJT Partners is not a legal, tax or regulatory advisor and relied upon without independent verification the assessment of the Company and its legal, tax and regulatory advisors with respect to such matters.

In arriving at its opinion, PJT Partners was not asked to solicit, and did not solicit, interest from any party with respect to any sale, acquisition, business combination or other extraordinary transaction involving the Company

 

41

or its assets, although PJT Partners noted that it was authorized in accordance with the Merger Agreement to do so for a prescribed period of time following the execution of the Merger Agreement. PJT Partners did not consider the relative merits of the Merger as compared to any other business plan or opportunity that might be available to the Company or the effect of any other arrangement in which the Company might engage and PJT Partners’ opinion did not address the underlying decision by the Company to engage in the Merger. PJT Partners’ opinion was limited to the fairness as of the date of the opinion, from a financial point of view, to the holders of Common Stock of the Common Stock Merger Consideration to be received by such holders in the Merger, and PJT Partners’ opinion did not address any other aspect or implication of the Merger, the Merger Agreement, or any other agreement or understanding entered into in connection with the Merger or otherwise. PJT Partners further expressed no opinion or view as to the fairness of the Merger to the holders of any other class of securities (including to the holders of Preferred Stock), creditors or other constituencies of the Company or as to the underlying decision by the Company to engage in the Merger. PJT Partners also expressed no opinion as to the fairness of the amount or nature of the compensation to any of the Company’s officers, directors or employees, or any class of such persons. PJT Partners’ opinion was necessarily based upon economic, market, monetary, regulatory and other conditions as they existed and could be evaluated, and the information made available to PJT Partners, as of the date of the opinion. PJT Partners expressed no opinion as to the prices or trading ranges at which the Common Stock would trade at any time.

PJT Partners’ opinion does not constitute a recommendation to any holder of Common Stock or Preferred Stock as to how any stockholder should vote or act with respect to the Merger or any other matter. PJT Partners assumed no responsibility for updating or revising its opinion based on circumstances or events occurring after the date of its opinion. The issuance of PJT Partners’ opinion was approved by a fairness committee of PJT Partners in accordance with established procedures.

PJT Partners’ advisory services and opinion were provided to the ORBCOMM Board, in its capacity as such, in connection with and for the purposes of its evaluation of the Merger only and the opinion does not constitute a recommendation as to any action the ORBCOMM Board should take with respect to the Merger or any aspect thereof.

Summary of Financial Analyses

In connection with rendering its opinion, PJT Partners performed certain financial, comparative and other analyses as summarized below. In arriving at its opinion, PJT Partners did not ascribe a specific range of values to the shares of Common Stock but rather made its determination as to fairness, from a financial point of view, to the holders of Common Stock, of the Common Stock Merger Consideration to be received by such holders pursuant to the Merger Agreement on the basis of various financial and comparative analyses. The preparation of a fairness opinion is a complex process and involves various determinations as to the most appropriate and relevant methods of financial and comparative analyses and the application of those methods to the particular circumstances. Therefore, a fairness opinion is not readily susceptible to summary description.

In arriving at its opinion, PJT Partners did not attribute any particular weight to any single analysis or factor considered by it but rather made qualitative judgments as to the significance and relevance of each analysis and factor relative to all other analyses and factors performed and considered by it and in the context of the circumstances of the Merger. Accordingly, PJT Partners believes that its analyses must be considered as a whole, as considering any portion of such analyses and factors, without considering all analyses and factors as a whole, could create a misleading or incomplete view of the process underlying its opinion.

The following is a summary of the material financial analyses used by PJT Partners in preparing its opinion to the ORBCOMM Board. Certain financial analyses summarized below include information presented in tabular format. In order to fully understand the financial analyses used by PJT Partners, the tables must be read together with the text of each summary, as the tables alone do not constitute a complete description of the financial analyses. In performing its analyses, PJT Partners made numerous assumptions with respect to industry

 

42

performance, general business and economic conditions and other matters, many of which are beyond the control of the Company or any other parties to the Merger. None of the Company, the ORBCOMM Board, PJT Partners, or any other person assumes responsibility if future results are materially different from those discussed. Any estimates contained in these analyses are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than as set forth below. In addition, analyses relating to the value of the businesses do not purport to be appraisals or reflect the prices at which the businesses may actually be sold. The financial analyses summarized below were based on the Company Projections and other financial information prepared and furnished to PJT Partners by or on behalf of the management of the Company and approved for PJT Partners’ use by the ORBCOMM Board. The following summary does not purport to be a complete description of the financial analyses performed by PJT Partners. The following quantitative information, to the extent that it is based on market data, is based on market data as it existed for the Company as of April 6, 2021 (which was the last trading day for the Company’s Common Stock prior to the date of PJT Partners’ opinion), and is not necessarily indicative of current or future market conditions. Calculations of implied per share equity values were rounded to the nearest $0.05. The detail underlying the fully diluted share count for the Company used below was provided by the Company’s management.

Selected Public Market Multiples Analysis

In order to assess how the public market values shares of similar publicly traded companies and to provide a range of relative implied equity values per share of Common Stock by reference to these companies, which could then be used to calculate implied per share equity value ranges, PJT Partners reviewed and compared specific financial, operating and public trading data relating to the Company with selected companies that PJT Partners deemed comparable to the Company and relevant for purposes of this analysis. The selected comparable companies were CalAmp Corp., Digi International Inc., Ituran Location and Control Ltd., MiX Telematics Ltd., PowerFleet Inc., Sierra Wireless, Inc., Telit Communications PLC and Trimble Inc.

As part of its selected public market multiples analysis, PJT Partners calculated and analyzed the following ratios and multiples: (i) total enterprise value (calculated as the equity value based on fully diluted shares of Common Stock outstanding calculated using the treasury stock method, plus debt and less cash, after giving effect to certain adjustments, such as noncontrolling interests) (“TEV”) as a multiple of 2021E Adjusted EBITDA post stock-based compensation (“SBC”) (“TEV / 2021E Adjusted EBITDA (Post-SBC)”) and (ii) TEV as a multiple of 2021E Revenue (“TEV / 2021E Revenue”).

All of these calculations were performed and based on publicly available financial data and on closing share prices for each comparable company as of April 6, 2021. The results of this selected comparable company analysis are summarized below:

 

Low

Median

Mean

High

TEV / 2021E Adjusted EBITDA (Post-SBC)

6.3x

15.1x

17.4x

32.4x

TEV / 2021E Revenue

0.9x

1.9x

2.3x

6.7x

PJT Partners, based on its professional judgment, selected the comparable companies because PJT Partners believed their businesses, operating and public trading profiles are reasonably similar to those of the Company. However, because of the inherent differences between the businesses, operations and prospects of the Company and those of the selected comparable companies, PJT Partners believed that it was inappropriate to, and therefore did not, rely solely on the quantitative results of the selected public market multiples analysis. Accordingly, PJT Partners also made qualitative judgments concerning differences between the public trading histories, businesses, financial and operating characteristics and prospects of the Company and the selected comparable companies that could affect the public trading values of each in order to provide a context in which to consider the results of the quantitative analysis. These qualitative judgments related primarily to the differing sizes, growth prospects, profitability levels and degree of operational risk between the Company, as applicable, and the companies included in the selected public market multiples analysis.

 

43

Based upon these judgments, PJT Partners selected a TEV / 2021E Adjusted EBITDA (Post-SBC) multiple range of 14.0x to 20.0x and a TEV / 2021E Revenue multiple range of 2.5x to 4.0x and applied such ranges to ORBCOMM’s 2021E Adjusted EBITDA and 2021E Revenue, respectively, included in the Company Projections to calculate a range of implied prices per share of Common Stock based on the fully diluted shares of Common Stock outstanding calculated using the treasury stock method as well as the Company’s net debt as of March 31, 2021. The following summarizes the results of these calculations:

 

		Implied Per Share Equity Value of Common Stock
		Low				High
TEV / 2021E Adjusted EBITDA (Post-SBC)		$	7.55			$	11.70
TEV / 2021E Revenue		$	6.15			$	11.15

PJT Partners then compared these ranges of implied per share equity values of Common Stock to the Common Stock Merger Consideration of $11.50 per share of Common Stock.

Selected Precedent M&A Transactions Analysis

PJT Partners reviewed, to the extent publicly available, and analyzed the valuation and financial metrics relating to the following 22 transactions involving companies in the IoT, enterprise awareness and telematics industries, which PJT Partners in its professional judgment considered generally relevant for comparative purposes:

 

Announcement Date		Acquiror		Target
March 12, 2021		Cerberus Telecom Acquisition Corp.		KORE Wireless Group, Inc.
February 12, 2021		Sensata Technologies		Xirgo Technologies Intermediate Holdings, LLC
January 8, 2020		Permira		Lytx, Inc.
March 13, 2019		I.D. Systems, Inc.		Pointer Telocation Ltd.
January 22, 2019		Bridgestone Europe NV/SA		TomTom Telematics B.V.
December 19, 2018		Volkswagen AG		WirelessCar AB
November 1, 2018		AMETEK, Inc.		Telular Corporation
August 2, 2017		Sierra Wireless, Inc.		Numerex Corp.
August 1, 2016		Verizon Communications Inc.		Fleetmatics Group PLC
June 21, 20216		Verizon Communications Inc.		Telogis Inc.
February 18, 2016		GTCR		Lytx, Inc.
June 18, 2015		Novatel Wireless		DigiCore Holdings Limited
November 6, 2014		ORBCOMM Inc.		SkyWave Mobile Communications
September 2, 2014		Omnitracs, LLC		XRS Corporation
June 9, 2014		Michelin Group		Sascar Tecnologia Automotiva S/A
November 25, 2013		Vista Equity Partners, LLC / Omnitracs, Inc.		Roadnet Technologies, Inc.
August 23, 2013		Vista Equity Partners, LLC		Omnitracs, Inc.
August 2, 2013		Danaher Corporation		Teletrac, Inc.
April 29, 2013		Avista Capital Partners		Telular Corporation
August 27, 2012		Trimble Navigation Ltd.		TMW Systems, Inc.
June 1, 2012		Verizon Communications Inc.		Hughes Telematics, Inc.
February 24, 2011		ORBCOMM Inc.		StarTrak Systems, LLC

For each precedent transaction, PJT Partners reviewed the TEV as a multiple of (i) the target company’s last twelve-month (“LTM”) EBITDA (Post-SBC), (ii) the target company’s next twelve-month (“NTM”) EBITDA (Post-SBC), (iii) the target company’s LTM revenue and (iv) the target company’s NTM revenue. Where Post-SBC metrics were not available, pre-SBC metrics were considered instead. All of these calculations were performed and based on publicly available financial data at the time of announcement of the relevant transaction.

 

44

The reasons for and the circumstances surrounding each of the selected precedent transactions analyzed were diverse and there are inherent differences in the business, operations, financial conditions and prospects of the Company and the companies included in the selected precedent M&A transactions analysis. In addition, certain of the selected precedent transactions involved stock consideration rather than cash consideration, and the selected precedent transactions occurred during periods in which financial, economic and market conditions were different from those in existence as of the date of PJT Partners’ opinion. Accordingly, PJT Partners believed, and discussed with the ORBCOMM Board, that a purely quantitative selected precedent transactions analysis would not be particularly meaningful in the context of considering the Merger and did not consider the TEV as a multiple of LTM EBITDA (Post-SBC) (“TEV / LTM EBITDA (Post-SBC)”), the TEV as a multiple of NTM EBITDA (Post-SBC) (“TEV / NTM EBITDA (Post-SBC)”), the TEV as a multiple of LTM Revenue (“TEV / LTM Revenue”) or the TEV as a multiple of NTM Revenue (“TEV / NTM Revenue”) multiple of any one selected precedent transaction individually to be more relevant than the same multiple for any other selected precedent transaction. PJT Partners therefore made qualitative judgments concerning the differences between the characteristics of the selected precedent transactions and the Merger that would affect the acquisition values of the selected target companies and the Company.

 

Low

Median

Mean

High

TEV / NTM 2021E Adjusted EBITDA (Post-SBC)

8.7x

15.2x

15.5x

28.4x

TEV / NTM 2021E Revenue

1.5x

4.6x

4.5x

7.8x

After reviewing the above analyses, PJT Partners selected a TEV / NTM EBITDA (Post-SBC) multiple range of 13.0x to 18.0x, and applied such range to the Company’s 2021E Adjusted EBITDA (Post-SBC) included in the Company Projections to calculate a range of implied per share equity values for the Company as of April 6, 2021. PJT Partners selected a TEV / NTM Revenue multiple range of 3.25x to 5.00x, and applied such range to the Company’s 2021E Revenue included in the Company Projections to calculate a range of implied per share equity values for the Company as of April 6, 2021. Such implied per share values also included the net present value of $24.4 to $31.7 million with respect to TEV / NTM EBITDA (Post-SBC) and $27.4 to $35.5 million with respect to TEV / NTM Revenue, in each case, for an estimated approximately $190 million of federal net operating losses (“NOLs”) and other similar tax attributes as of March 31, 2021 as provided by the Company’s management and its tax advisors, which is the valuation of certain ORBCOMM NOLs in an acquisition scenario based on the taxable income forecast contained in the Company Projections, incorporating limitations on the utilization of NOLs in a change of control scenario under IRS Section 382 as provided by the Company’s management and its tax advisors and discounted at discount rates ranging from 9.0% to 10.0%, which were selected based on PJT Partners’ analysis of the weighted average cost of capital of the Company.

The following summarizes the results of these calculations:

 

		Implied Per Share Equity Value of the Common Stock
		Low				High
TEV / 2021E Adjusted EBITDA (Post-SBC)		$	7.15			$	10.70
TEV / 2021E Revenue		$	9.00			$	14.90

PJT Partners then compared these ranges of implied per share equity values of Common Stock to the Common Stock Merger Consideration of $11.50 per share of Common Stock.

Discounted Cash Flow Analysis

In order to estimate the present value of Common Stock, PJT Partners performed a discounted cash flow analysis of the Company. A discounted cash flow analysis is a traditional valuation methodology used to derive a valuation of an asset by calculating the “present value” of estimated future cash flows generated by the asset. “Present value” refers to the current value of future cash flows or amounts and is obtained by discounting those

 

45

future cash flows or amounts by a discount rate that takes into account macroeconomic assumptions and estimates of risk, the opportunity cost of capital, expected returns and other appropriate factors.

To calculate the estimated TEV of the Company using the discounted cash flow method, PJT Partners added (i) the Company’s estimated unlevered free cash flows for the period from March 31, 2021 through December 31, 2030 based on the Company Projections to (ii) ranges of terminal values of the Company as of December 31, 2030, and discounted such amounts to their present value as of March 31, 2021 using a range of selected discount rates. Unlevered free cash flows were provided by the Company’s management as part of the Company Projections and consisted of the Adjusted EBITDA (Post-SBC), less capital expenditures, changes in net working capital and unlevered cash taxes, with appropriate adjustments for other cash items.

The residual value of the Company at the end of the projection period, or terminal value, was estimated by applying a perpetuity growth rate range of 2.5% to 4.5% to the Company’s 2030E unlevered free cash flow selected by PJT Partners in its professional judgment, which implied a terminal TEV / Adjusted EBITDA (Post-SBC) multiple range of 7.9x to 13.3x to the Company’s 2030E Adjusted EBITDA (Post-SBC). The unlevered free cash flows and terminal values were then discounted to present value as of March 31, 2021 using discount rates ranging from 9.0% to 10.0%, which were selected based on PJT Partners’ analysis of the weighted average cost of capital of the Company, based on PJT Partners’ professional judgment.

PJT Partners then calculated a range of implied equity values per share of the Company’s Common Stock by (i) subtracting the Company’s net debt as of March 31, 2021, which was estimated by the Company’s management to be $181 million, (ii) subtracting the value of the noncontrolling interests, which was estimated by the Company’s management to be $1 million, and (iii) adding the net present value of certain NOLs and other similar tax attributes (approximately $35.9 to $38.0 million based on the taxable income forecast contained in the Company Projections, not reflecting any limitations on the utilization of NOLs in a change of control scenario under IRS Section 382 as provided by the Company’s management and its tax advisors, and discounted to present value as of March 31, 2021, using a discount rate ranging from 9.0% to 10.0% selected by PJT Partners in its professional judgment), to the estimated TEV derived using the discounted cash flow method and dividing such amounts by the fully diluted shares of Common Stock outstanding calculated using the treasury stock method as of March 31, 2021, which was estimated by the Company’s management to be in a range between 81.6 million and 81.9 million shares.

The following summarizes the results of these calculations:

 

		Implied Per Share Equity Value
		Low				High
Discounted cash flow analysis		$	9.45			$	15.50

PJT Partners then compared this range of implied per share equity values of Common Stock to the Common Stock Merger Consideration of $11.50 per share of Common Stock.

Other Information

PJT Partners also observed the additional factors described below, which were not considered part of its financial analyses in connection with rendering its opinion, but were referenced solely for informational purposes:

 

•

historical trading activity of Common Stock during the 52-week period ending April 6, 2021 indicated low and high intraday trading prices of Common Stock during such period of $2.04 to $9.25; and

 

•

publicly available Wall Street research analysts’ share price targets (certain of which were twelve-month price targets) for Common Stock indicated a target (undiscounted) share price range of $9.25 to $13.00, the sources of which were Canaccord Genuity, Craig-Hallum, Northland Securities, Raymond James, and Roth Capital Partners.

 

46

General

The preparation of a fairness opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. Selecting portions of the analyses or of the summary set forth above, without considering the analyses as a whole, could create an incomplete view of the processes underlying PJT Partners’ opinion. In arriving at its fairness determination, PJT Partners considered the results of all of its analyses and did not attribute any particular weight to any factor or analysis considered by it. Rather, PJT Partners made its determination as to fairness on the basis of its experience and professional judgment after considering the results of all of its analyses. No company or transaction used in the above analyses as a comparison is directly comparable to the Company or the Merger. The terms of the Merger Agreement, including the Common Stock Merger Consideration, were determined through arm’s-length negotiations among the Company, Parent and Merger Sub, rather than PJT Partners, and the decision to enter into the Merger Agreement was solely that of the Company, Parent and Merger Sub.

PJT Partners prepared these analyses for purposes of providing its opinion to the ORBCOMM Board as to the fairness, from a financial point of view, as of the date of the written opinion of PJT Partners, to the holders of Common Stock, of the Common Stock Merger Consideration to be received by such holders pursuant to the Merger. These analyses do not purport to be appraisals nor do they necessarily reflect the prices at which businesses or securities actually may be sold. Analyses based upon forecasts of future results are not necessarily indicative of actual future results, which may be significantly more or less favorable than suggested by these analyses. Because these analyses are inherently subject to uncertainty, being based upon numerous factors or events beyond the control of the parties or their respective advisors, none of the Company, the ORBCOMM Board, PJT Partners or any other person assumes responsibility if future results are materially different from those forecast.

PJT Partners is an internationally recognized investment banking firm and, as part of its investment banking activities, is regularly engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, investments for passive and control purposes, negotiated underwritings, competitive bids, secondary distributions of listed and unlisted securities, private placements and valuations for estate, corporate and other purposes. ORBCOMM selected PJT Partners to act as its financial advisor because of its qualifications, reputation and experience in the valuation of businesses and securities in connection with mergers and acquisitions.

PJT Partners is acting as financial advisor to the Company with respect to the Merger. As compensation for its services in connection with the Merger, PJT Partners is entitled to receive from the Company a $1 million opinion fee which became payable when the opinion was rendered to the ORBCOMM Board (and which became payable regardless of the conclusion reached in such opinion) and is creditable against a transaction fee that is payable contingent upon the consummation of the Merger, which is currently estimated, as of May 5, 2021, to be $14.9 million. In addition, the Company has agreed to reimburse PJT Partners for certain out-of-pocket expenses and to indemnify PJT Partners for certain liabilities arising out of the performance of such services (including the rendering of PJT Partners’ opinion).

In the ordinary course of PJT Partners and its affiliates’ businesses, PJT Partners and its affiliates may provide investment banking and other financial services to the Company, Parent and their respective affiliates and may receive compensation for the rendering of these services. During the two years preceding the date of its written opinion, PJT Partners did not provide any services to the Company and its affiliates. During the two years preceding the date of its written opinion, PJT Partners and certain of its affiliated entities: (i) from time to time met with certain affiliates of Parent to discuss various strategic and fundraising opportunities as part of PJT Partners’ general coverage of these affiliates of Parent, including, prior to the engagement of PJT Partners by the Company in connection with the Merger, a potential transaction with the Company; (ii) advised, through PJT Park Hill (PJT Partners’ fund placement business), acting as a fund placement agent, an affiliate of Parent in connection with the fundraising of GI Partners Data Infrastructure Fund LP, which is one of the funds that

 

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provided an equity commitment to Parent in connection with the Merger, for which PJT Partners has earned fees of less than $10 million and may in the future be entitled to receive additional customary compensation in the event certain limited partners of such fund co-invest in its investments; and (iii) are advising, through PJT Park Hill acting as a fund placement agent, an affiliate of Parent in connection with the fundraising of GI Partners Fund VI LP, for which PJT Partners has earned fees of less than $5  million and expects to earn additional fees in the future.

Certain ORBCOMM Unaudited Prospective Financial Information

Other than quarterly and annual guidance regarding total revenue and adjusted EBITDA margin, ORBCOMM does not as a matter of course make public long-term projections as to future revenues, earnings or other results due to, among other reasons, the uncertainty of the underlying assumptions and estimates.

In fall 2020, in connection with its ongoing review and analysis of the Company’s business operations and strategy, the Company’s management prepared certain nonpublic, internal financial analyses, estimates and forecasts relating to the Company, including projections for fiscal years 2021 through 2025 (as updated, the “Five-Year Plan”), which was reviewed by the ORBCOMM Board in October 2020. Company management subsequently prepared the fiscal year 2021 budget, which was approved by the ORBCOMM Board in December 2020. The foregoing information was provided to GI Partners as part of GI Partners’ initial due diligence efforts following its execution of a nondisclosure agreement with the Company on December 18, 2020.

Subsequently, in February 2021, in connection with the financial analyses to be performed by PJT Partners and with GI Partners’ ongoing due diligence efforts, Company management updated the Five-Year Plan based on additional operational and market information since the Five-Year Plan was made, including the fiscal year 2021 budget and preliminary results of the Company’s fourth quarter and fiscal year ended December 31, 2020. At PJT Partners’ request, Company management also prepared an extrapolation of the Five-Year Plan for fiscal years 2026 through 2030 (such extrapolations, the “Company Extrapolations,” and, together with the Five-Year Plan, the “Company Projections”). Summaries of Company management’s updates to the Five-Year Plan and of the Company Extrapolations were shared with the ORBCOMM Board, and the ORBCOMM Board approved the provision to and use of the Company Projections (including the Company Extrapolations) by PJT Partners in its financial analyses, described more fully above under the caption “ — Opinion of PJT Partners LP”.

Included below is a summary of the Company Projections for the purpose of providing ORBCOMM’s stockholders access to certain nonpublic information that was furnished to GI Partners and PJT Partners in connection with the Merger. Such information may not be appropriate for other purposes, and is not included to influence your decision, if you are an ORBCOMM stockholder, to vote for the Merger Proposal, the Compensation Proposal or the Adjournment Proposal. You should also note that this information constitutes forward looking statements. See the section of this proxy statement entitled “Cautionary Statement Concerning Forward-Looking Statements.”

The Company Projections were not prepared with a view toward public disclosure, nor were they prepared with a view toward compliance with published guidelines established by the American Institute of Certified Public Accountants for preparation and presentations of financial projections. This information is prospective and should not be relied upon as being necessarily indicative of future results, and readers of this proxy statement are cautioned not to place undue reliance on the Company Projections. The Company Projections have been prepared by, and are the responsibility of, ORBCOMM’s management. Neither the Company’s independent registered public accounting firm, nor any independent accountants, have examined, compiled or performed any procedures with respect to the Company Projections and, accordingly, the Company’s independent registered accounting firm does not express an opinion or any other form of assurance on the Company Projections or their achievability, and assumes no responsibility for, and disclaims any association with, the Company Projections. ORBCOMM’s independent registered public accounting firm’s report, contained in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, which is incorporated by reference into this

 

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proxy statement, relates to ORBCOMM’s historical financial information. It does not extend to the Company Projections and should not be read to do so. Furthermore, the Company Projections do not take into account any circumstances or events occurring after the date they were prepared.

While presented with numeric specificity, the Company Projections were based on numerous variables and assumptions (including, but not limited to, the assumptions that relate to annual total revenue growth of approximately 10% and annual Adjusted EBITDA (Post-SBC) growth of approximately 20% during the 2021 to 2025 period) that are inherently subjective and uncertain and are beyond the control of ORBCOMM’s management. Important factors that may affect actual results and cause the Company Projections to not be achieved include, but are not limited to, risks and uncertainties relating to ORBCOMM’s business, industry performance, general business and economic conditions and other factors described in the section “Cautionary Statement Concerning Forward-Looking Statements.” The Company Projections also reflect numerous variables, expectations and assumptions available at the time they were prepared as to certain business decisions that are subject to change. As a result, actual results may differ materially from those contained in the Company Projections. Accordingly, there can be no assurance that the projected results summarized below will be realized. ORBCOMM’s stockholders are urged to review ORBCOMM’s most recent SEC filings for a description of the reported results of operations and financial condition and capital resources, including in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in ORBCOMM’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, and subsequent quarterly reports on Form 10-Q, all of which are incorporated by reference into this proxy statement.

The inclusion of a summary of the Company Projections in this proxy statement should not be regarded as an indication that any of ORBCOMM, GI Partners or their respective officers, directors, affiliates, advisors or other representatives considered the Company Projections to necessarily be material or predictive of actual future events, and the Company Projections should not be relied upon as such nor should the information contained in the Company Projections be considered appropriate for other purposes. None of ORBCOMM, GI Partners or their respective officers, directors, affiliates, advisors or other representatives can give you any assurance that actual results will not differ materially from the Company Projections. ORBCOMM undertakes no obligation to update or otherwise revise or reconcile the Company Projections to reflect circumstances existing after the date the Company Projections were generated or to reflect the occurrence of future events, even in the event that any or all of the assumptions underlying the Company Projections are shown to be in error.

The Company has not made and makes no representation to Parent, Merger Sub or any other person, in the Merger Agreement or otherwise, concerning the Company Projections or regarding ORBCOMM’s ultimate performance compared to the information contained in the Company Projections or that the projected results will be achieved.

The following is a summary of the Company Projections. The Company Projections are based solely on the information available to ORBCOMM’s management at the time of the preparation of the Company Projections, and do not give effect to the Merger.

 

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The following table presents a summary of the Company Projections, with all figures rounded to the nearest million:

 

		Company Projections
		Five-Year Plan																				Company Extrapolations
($ in millions)		2021E				2022E				2023E				2024E				2025E				2026E(5)				2027E(5)				2028E(5)				2029E(5)				2030E(5)
Total Revenues		$	273			$	304			$	339			$	377			$	414			$	450			$	483			$	513			$	542			$	567
Gross Profit		$	142			$	161			$	182			$	205			$	226			$	248			$	267			$	285			$	303			$	317
Net Income		$	(5	)		$	9			$	26			$	42			$	59			$	86			$	93			$	101			$	109			$	101
Adjusted EBITDA (Pre-SBC)(1)		$	64			$	77			$	96			$	115			$	132			$	147			$	160			$	171			$	182			$	192
Adjusted EBITDA (Post-SBC)(2)		$	57			$	70			$	88			$	108			$	125			$	139			$	152			$	162			$	173			$	182
Levered Free Cash Flow(3)		$	18			$	31			$	48			$	61			$	68			$	87			$	92			$	100			$	111			$	103
Unlevered Free Cash(4)		$	20			$	29			$	42			$	48			$	55			$	70			$	75			$	80			$	88			$	92

 

(1)

Adjusted EBITDA (Pre-SBC) is calculated as the Company’s net income (loss) plus (i) total depreciation and amortization, (ii) interest and other (income) expense, (iii) income tax expense (benefit), and (iv) stock-based compensation (“SBC”), and further adjusted to eliminate the Company’s noncontrolling interest in certain European entities, impairments and costs related to the Merger.

(2)	Adjusted EBITDA (Post-SBC) is calculated as Adjusted EBITDA (Pre-SBC) less SBC.

(3)	Levered free cash flow is a non-GAAP financial measure defined as the Adjusted EBITDA (Post-SBC), plus stock-based compensation, less capital expenditures, interest and other (income) expense, changes in net working capital and levered cash taxes, with appropriate adjustments for other cash items.

(4)	Unlevered free cash flow is a non-GAAP financial measure defined as the Adjusted EBITDA (Post-SBC), less capital expenditures, changes in net working capital and unlevered cash taxes, with appropriate adjustments for other cash items.

(5)	The Company Projections for fiscal years 2026 through 2030 are based on Company management’s updated Five-Year Plan for fiscal years 2021 through 2025 with extrapolations for fiscal years 2026 through 2030.

General

Important factors that may affect actual results and cause the Company Projections not to be achieved include risks and uncertainties relating to ORBCOMM’s business (including general economic conditions; substantial competition in the telecommunications, automatic identification system (“AIS”) data and industrial IoT industries; the inability to effect suitable investments, alliances and acquisitions or the inability to successfully integrate acquired businesses and systems; defects, errors or other insufficiencies in our products or services, including operational risks related to our satellites; failure to meet minimum service level commitments to certain of our customers; a decrease in spending on our products and services by our significant customers; cybersecurity risks; the level of our indebtedness and the terms of our credit agreement that could restrict our business activities or our ability to execute our strategic objectives or adversely affect our financial performance, and the ongoing risks related to the COVID-19 pandemic) and other factors described under “Cautionary Statement Concerning Forward-Looking Statements,” as well as the risk factors with respect to the Company’s business contained in our most recent SEC filings, which stockholders are urged to review, which may be found as described under “Where You Can Find More Information.” In addition, the Company Projections cover multiple future years, and such information by its nature is less reliable in predicting each successive year. The Company Projections also do not take into account any circumstances or events occurring after the date on which they were prepared and do not give effect to the transactions contemplated by the Merger Agreement, including the Merger, and also do not take into account the effect of the failure of the Merger to be completed. The Company Projections also reflect assumptions as to certain business decisions that are subject to change. As a result, actual results may differ

 

50

materially from those contained in the Company Projections. Accordingly, there can be no assurance that the Company Projections will be realized or that actual results will not be significantly lower than projected.

The inclusion of the Company Projections in this proxy statement should not be regarded as an indication that any of ORBCOMM or its affiliates, advisors or representatives considered the Company Projections to be material or predictive of actual future events, and the Company Projections should not be relied on as such. None of ORBCOMM or its affiliates, advisors, officers, employees, directors or representatives can give you any assurance that actual results will not differ from the Company Projections, and none of those persons undertakes any obligation to update or otherwise revise or reconcile the Company Projections to reflect circumstances existing after the date the Company Projections were prepared or to reflect the occurrence of future events even in the event that any or all of the assumptions underlying the Company Projections are shown to be in error. The Company does not intend to publicly update or make any other revision to the Company Projections. None of ORBCOMM or any of its affiliates, advisors, officers, employees, directors or representatives has made or makes any representation to Parent, Merger Sub or any other person regarding ORBCOMM’s ultimate performance compared to the Company Projections or that the results reflected therein will be achieved. For the reasons described above, readers of this proxy statement are cautioned not to place undue, if any, reliance on the Company Projections.

Termination Fee; Limited Guaranty

Concurrently with the execution of the Merger Agreement, the Guarantors entered into the Limited Guaranty with the Company, pursuant to which the Guarantors have guaranteed the obligations of Parent to pay the Parent Termination Fee and certain other amounts that may be owed by Parent pursuant to the Merger Agreement, subject to the terms and conditions set forth in the Limited Guaranty and the Merger Agreement, in an amount not to exceed $51.8 million in the aggregate (plus up to an additional $1 million in interest for late payments).

The Guarantors’ obligations under the Limited Guaranty will terminate upon the earliest to occur of (i) the closing of the Merger and payment of the Merger Consideration required to be paid by Parent at the closing, (ii) termination of the Merger Agreement in accordance with its terms (other than a termination of the Merger Agreement due to a willful breach by Parent or in circumstances for which the Parent Termination Fee is payable (any such termination a “Qualifying Termination”)), and (iii) the 180^th day after a Qualifying Termination, unless prior to the 180^th day after a Qualifying Termination the Company has commenced an action alleging that Parent owes the Parent Termination Fee or monetary damages as a result of Parent’s willful breach of the Merger Agreement or that the Guarantors owe amounts due under the Limited Guaranty (a “Qualifying Suit”); provided that if a Qualifying Termination has occurred and a Qualifying Suit is filed prior to the 180th day after a Qualifying Termination, no Guarantor shall have any further liability or obligation under the Limited Guaranty from and after the earliest of (a) the closing of the Merger and payment of the Merger Consideration required to be paid by Parent at the closing, (b) a final, non-appealable resolution of a Qualifying Suit determining that parent does not owe the Parent Termination Fee or monetary damages as a result of willful breach, (c) by written agreement of the parties and (d) payment of the guaranteed obligations under the Limited Guaranty).

Financing

The Equity Investors have committed to contribute or cause to be contributed to Parent at the closing of the Merger an aggregate amount in cash equal to $796.6 million, subject to the terms and conditions set forth in the Equity Commitment Letter, for the purpose of funding in part, the payment of the amounts payable under the Merger Agreement, the refinancing of certain of ORBCOMM’s existing indebtedness outstanding as of the closing of the Merger and the payment of fees and expenses related to the transactions, in each case in accordance with the Merger Agreement. The obligations of the members of the Equity Investors to provide the equity financing under the Equity Commitment Letter are subject to a number of conditions, including, but not limited to: (i) the satisfaction or waiver by Parent of each of the conditions to Parent’s obligations to consummate the transactions contemplated by the Merger Agreement pursuant to the Merger Agreement (other than those

 

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conditions that by their nature are to be satisfied at the closing, but subject to the satisfaction or waiver of such conditions at the closing), (ii) the funding or irrevocable confirmation of the lenders party to the Debt Commitment Letter that all conditions to the funding of the debt financing have been satisfied and the debt financing will be funded at the closing if the equity financing is funded by the Equity Investors at the closing and (iii) the remainder of the equity financing has or will be funded at the closing by the other Equity Investors.

The obligation of the Equity Investors to fund the equity commitment will automatically and immediately terminate upon the earliest to occur of: (i) the closing of the Merger, (ii) the valid termination of the Merger Agreement, and (iii) the date that ORBCOMM or any of its partners, members, stockholders, employees, officers or controlled affiliates institutes certain suits, actions or other legal proceedings.

ORBCOMM is an express third-party beneficiary of the rights granted to Parent under the Equity Commitment Letter for the purpose of obtaining specific performance of Parent’s right to cause the equity commitment to be funded to Parent under the Equity Commitment Letter (solely to the extent that Parent is permitted to enforce the equity commitment pursuant to the terms thereof and of the Merger Agreement).

In addition, in connection with the Merger Agreement, Parent entered into the Debt Commitment Letter with the Debt Commitment Parties, pursuant to which the Debt Commitment Parties have committed to provide, upon certain terms and subject to certain conditions, Merger Sub with debt financing in an aggregate principal amount of $410 million (not all of which is expected to be drawn at the closing of the Merger), consisting of the following:

 

•

$360 million senior secured first lien term loan facility; and

 

•

$50 million senior secured first lien revolving facility.

We refer to the financing described above as the “debt financing.” The proceeds of the debt financing will be used (i) to finance, in part, the payment of the amounts payable under the Merger Agreement, the refinancing of certain of ORBCOMM’s existing indebtedness outstanding as of the closing of the Merger and the payment of fees and expenses related to the transactions, (ii) to provide ongoing working capital, and (iii) for other general corporate purposes.

The obligations of the Debt Commitment Parties to provide the debt financing under the Debt Commitment Letter are subject to a number of customary conditions, including, but not limited to (as applicable):

 

•

the consummation of the Merger in accordance with the Merger Agreement as in effect on April 7, 2021 (without giving effect to any amendments, waivers, modifications or consents thereof or thereto that are materially adverse to the Debt Commitment Parties without the consent of the lead arrangers);

 

•

the consummation of the equity financing;

 

•

the absence of a Company Material Adverse Effect since April 7, 2021;

 

•

subject to certain limitations and exceptions, the accuracy in all material respects as of the closing of the Merger of certain specified representations and warranties in the Merger Agreement and certain specified representations and warranties in the loan documents; and

 

•

the borrower having used commercially reasonable efforts to afford the Debt Commitment Parties a marketing period of at least 15 consecutive business days (subject to certain blackout dates) following receipt of certain financial statements.

As of the date hereof, the documentation governing the debt financing contemplated by the Debt Commitment Letter has not been finalized and, accordingly, the actual terms of the debt financing may differ from those described in this proxy statement.

 

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Notwithstanding anything in the Merger Agreement to the contrary, in no event shall the receipt or availability of any funds or financing (including the financing contemplated by the Financing Letters) by or to Parent or any of its affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub under the Merger Agreement.

ORBCOMM has agreed to use its reasonable best efforts to provide, and to cause its subsidiaries to use their reasonable best efforts to provide, to Parent and Merger Sub such cooperation as is customary and reasonably requested by Parent in connection with the arrangement of the financing, subject to the terms set forth in the Merger Agreement. For more information, see “The Merger Agreement — Financing and Financing Cooperation.”

Interests of the Company’s Directors and Executive Officers in the Merger

In considering the recommendation of the ORBCOMM Board that ORBCOMM shareholders approve the Merger Proposal, ORBCOMM shareholders should be aware that the directors and executive officers of ORBCOMM have potential interests in the Merger that may be different from, or in addition to, the interests of ORBCOMM shareholders generally, including, among others:

 

•

members of the ORBCOMM Board and executive officers of the Company are entitled to new and continued rights of indemnification and advancement of expenses and insurance coverage under the Merger Agreement;

 

•

the Company’s executive officers as of the Effective Time are expected to continue to serve as officers of the surviving corporation;

the Company’s executive officers are eligible to receive retention payments in connection with the Merger subject to the prior written consent of Parent

 

•

the treatment of the Company equity awards held by the Company’s executive officers as of the Effective Time; and

 

•

executive officers are eligible to receive severance benefits in the event of certain qualifying terminations following the Effective Time.

The ORBCOMM Board was aware of these interests and considered them, among other matters, in making its recommendation that ORBCOMM shareholders vote in favor of the Merger Proposal.

For purposes of the disclosure below, our executive officers are (i) Marc Eisenberg, Chief Executive Officer and President, (ii) Constantine Milcos, Executive Vice President and Chief Financial Officer, (iii) John Stolte, Executive Vice President, Technology and Operations, (iv) Christian Le Brun, Executive Vice President, Chief Legal and Human Resources Officer, and (v) Craig Malone, Executive Vice President, Product Development.

Treatment of Company Equity Awards

Executive officers and directors of the Company hold unvested Company equity awards that will be accelerated and cancelled in exchange for a cash payment based on the Common Stock Merger Consideration, as described in more detail below.

Company Restricted Stock Unit Awards. Unless otherwise agreed in writing with any individual holder of a Company RSU Award, at the Effective Time, each Company RSU Award, whether vested or unvested, that is outstanding immediately prior to the Effective Time and (i) is subject solely to time-vesting conditions will become fully vested (to the extent unvested) as to any time-vesting conditions and nonforfeitable, and will be cancelled and converted automatically into the right to receive an amount in cash equal to the Common Stock Merger Consideration for each share of Common Stock subject to such Company RSU Award, or (ii) is subject

 

53

to performance-based vesting or other performance-based lapse restrictions will become vested and nonforfeitable with respect to a number of shares of Common Stock subject to such Company RSU Award calculated based on target level of performance, and will be cancelled and converted automatically into the right to receive an amount in cash equal to the Common Stock Merger Consideration for each vested share of Common Stock subject to such Company RSU Award, in each case, subject to applicable tax withholding.

Company Stock Appreciation Right Awards. Unless otherwise agreed in writing with any individual holder of a Company SAR Award, at the Effective Time, each Company SAR Award, whether vested or unvested, that is outstanding and unexercised immediately prior to the Effective Time will become fully vested (to the extent unvested) and be converted into the right to receive an amount in cash equal to the product of (i) the excess of the Common Stock Merger Consideration over the grant price per share of Common Stock of such Company SAR Award, multiplied by (ii) the total number of shares of Common Stock subject to such Company SAR Award, subject to applicable tax withholding. Any Company SAR Award that has a grant price per share of Common Stock that is greater than or equal to the Common Stock Merger Consideration will, as of the Effective Time, be cancelled for no consideration.

Company Market Performance Unit Awards. At the Effective Time, each Company MPU Award that is outstanding immediately prior to the Effective Time will become vested and nonforfeitable with respect to all or a portion of such Company MPU Award, with such portion to be calculated based on the greater of (i) achievement of the applicable performance goal as calculated based on the Common Stock Merger Consideration and (ii) the achievement of the applicable “Achievement Percentage”), and such Company MPU Award shall be cancelled and converted automatically into the right to receive an amount in cash equal to the payout amount determined under the applicable award agreement based on the Achievement Percentage as applied to the applicable tranche of Company MPU Award, subject to applicable tax withholding.

Estimated Value of Payments. For an estimate of the amounts that would be payable to each of the Company’s executive officers in respect of their unvested Company equity awards, see “— Quantification of Potential Payments and Benefits to the Company’s Named Executive Officers in Connection with the Merger” below. The table below shows the number of unvested time-based Company RSU Awards held by our non-employee directors:

 

Name		Number of Unvested Company RSU Awards
Jerome Eisenberg			14,598
Denise Gibson			14,598
Karen Gould			14,598
John Major			14,598
Timothy Kelleher			14,598
Marco Fuchs			14,598

Potential Severance Payments

The Company is currently party to an employment agreement with each of the executive officers (collectively, the “Employment Agreements”), which would entitle the executive officers to severance payments/benefits as a result of certain qualifying terminations that occur following the Effective Time, the materials terms of which are summarized below:

In the event that within 18 months following a change of control, Mr. Eisenberg’s employment is terminated without cause by the Company, or he voluntarily terminates his employment due to a material adverse change in his status, title, position or scope of authority or responsibilities or the successor in the change of control does not continue his employment on substantially equivalent terms as under his employment agreement, he will be entitled to two times the sum of his annual base salary and his target annual cash bonus amount, payable in a lump sum within 60 days after his termination, and health insurance coverage for 18 months at then existing employee contribution rates.

 

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In the event that within 18 months following a change of control, Mr. Milcos’s employment is terminated without cause by the Company, he will be entitled to one and one-half times the sum of his annual base salary and his target annual cash bonus amount, payable in a lump sum within 60 days after his termination, and health insurance coverage for 18 months at then existing employee contribution rates.

In the event that within 18 months following a change of control, Mr. Stolte’s employment is terminated without cause by the Company, he will be entitled to one and one-half times the sum of his annual base salary and his target annual cash bonus amount, payable in a lump sum within 60 days after his termination, and health insurance coverage for 18 months at then existing employee contribution rates.

In the event that within 18 months following a change of control, Mr. Le Brun’s employment is terminated without cause by the Company, he will be entitled to one and one-half times the sum of his annual base salary and his target annual cash bonus amount, payable in a lump sum within 60 days after his termination, and health insurance coverage for 18 months at then existing employee contribution rates.

In the event that within 18 months following a change of control, Mr. Malone’s employment is terminated without cause by the Company, he will be entitled to one and one-half times the sum of his annual base salary and his target annual cash bonus amount, payable in a lump sum within 60 days after his termination, and health insurance coverage for 18 months at then existing employee contribution rates.

Estimated Value of Payments. For an estimate of the amounts that would be payable to each of the Company’s executive officers under the Employment Agreements if they experience a severance-qualifying termination of employment following the Effective Time, see “— Quantification of Potential Payments and Benefits to the Company’s Named Executive Officers in Connection with the Merger” below.

Retention Payments

In connection with the Merger, the Compensation Committee of the ORBCOMM Board approved the creation of a cash retention pool not to exceed $1.0 million, for retention awards to certain employees who are expected to be critical in connection with the consummation of the Merger and related transition period. Although no individual retention awards have been determined, the Company’s executive officers are eligible to receive a retention payment under the retention pool, subject to approval by the Compensation Committee and with the prior written consent of GI Partners.

Post-Closing Compensation Arrangements

Mr. M. Eisenberg and Parent have recently been engaged in discussions regarding Mr. M. Eisenberg’s potential employment with, and/or the right to purchase or participate in the equity of, Parent or certain of its affiliates, following the Closing. Although no formal agreements or arrangements have been reached, it is currently expected that Mr. M. Eisenberg will invest a portion of the merger consideration otherwise payable to him in an affiliate of Parent through a “rollover” equity arrangement. Currently, it is expected that the value of Mr. M. Eisenberg’s rollover investment will be approximately $4 million, subject to ongoing discussions between the parties. However, the parties continue to be engaged in negotiations, and there can no assurance that any definitive agreement will be reached.

Although no formal agreements have been reached, it is also currently expected that Mr. M. Eisenberg and certain of our other executive officers will be eligible to participate in a post-closing management incentive plan pursuant to which they will have the opportunity to participate in the equity of an affiliate of Parent.

Indemnification; Directors’ and Officers’ Insurance

Pursuant to the terms of the Merger Agreement, certain directors and officers of the Company will be entitled to certain new and ongoing indemnification and coverage under directors’ and officers’ liability and fiduciary

 

55

liability insurance policies following the Merger. Such indemnification and insurance coverage is further described in the section of this proxy statement entitled “— The Merger Agreement — Indemnification and Insurance.”

Quantification Of Potential Payments And Benefits To The Company’s Named Executive Officers In Connection With The Merger

The following table sets forth the information required by Item 402(t) of Regulation S-K regarding certain compensation that may be paid or may become payable to each of the Company’s named executive officers (as identified in accordance with SEC regulations) and that is based on or otherwise relates to the Merger. The amounts listed below are not only estimates, but are based on multiple assumptions that may or may not actually occur, including that (i) the Closing Date occurs on June 1, 2021, and (ii) each named executive officer experienced a qualifying termination of employment on the Closing Date, which may or may not occur. Actual amounts, if any, to be received by a named executive officer may differ from the amounts set forth below.

Golden Parachute Compensation

 

Name		Cash ($)(1)(5)				Equity ($)(2)				Benefits ($)(3)(5)				Tax Reimbursement ($)(4)				Other ($)				Total ($)
Marc Eisenberg			2,100,000				2,336,351				41,466				0				0				4,477,817
Constantine Milcos			735,000				769,153				31,100				0				0				1,535,253
John J. Stolte Jr.			618,750				573,675				18,265				0				0				1,210,690
Christian G. Le Brun			675,750				611,261				18,265				0				0				1,305,276
Craig Malone			676,242				624,761				18,265				0				0				1,319,268

 

(1)

Cash. Represents the cash severance payments described above under “Interests of the Company’s Directors and Executive Officers in the Merger – Potential Severance Payments” that each executive officer would be eligible to receive if he experiences a severance-qualifying termination following the Effective Time. These payments are only payable in connection with a termination of employment within 18 months following a change of control and therefore are considered “double-trigger” payments. As described above, severance payments are generally payable in a lump sum within 60 days following the termination date.

(2)

Equity. Includes (i) the estimated cash value of accelerated Company RSUs, (ii) the estimated cash value of accelerated Company SAR Awards, and (iii) the estimated cash value of Company MPU Awards. As described above under “Interests of the Company’s Directors and Executive Officers in the Merger – Treatment of Company Equity Awards”, unvested company equity awards will vest and become payable upon consummation of the Merger, which accelerated vesting benefit is considered a “single-trigger” payment. The amounts set forth below for the equity-based awards assume target-level performance where applicable and are calculated based on the Merger Consideration price of $11.50. Currently, there are no unvested SAR Awards outstanding and therefore no value is included for those awards.

 

NAME		Company RSU Awards ($)				Company SAR Awards ($)				Company MPU Awards ($)
Marc Eiesenberg			1,863,851				0				472,500
Constantine Milcos			559,153				0				210,000
John J. Stolte Jr.			326,175				0				247,500
Christian G. Le Brun			372,761				0				238,500
Craig Malone			372,761				0				252,000

 

(3)	Personal Benefits. Represents the approximate value of continued coverage under company medical, dental and vision plans over 18 months following a severance-qualifying termination of employment, as described above.

(4)	Tax Reimbursement. None of the Employment Agreements provide for tax gross-ups.

 

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(5)

Pursuant to the Employment Agreements, the executive officers are subject to certain non-compete and non-solicitation covenants for a period of time following a severance-qualifying termination of employment (as applicable, the “restricted period”). The restricted period applicable to Mr. Eisenberg’s non-compete is 24 months and the restricted period applicable to the other executive officers is 12 months. The restricted period applicable to the non-solicitation covenants is 12 months. In the event that an executive officer is found to be in material breach of such covenants during the applicable restricted period, the Company would not be obligated to pay or provide the severance benefits described above.

Material U.S. Federal Income Tax Consequences of the Merger

The following is a general discussion of the material U.S. federal income tax consequences of the Merger to U.S. holders (as defined below) of Company Stock whose shares are exchanged for cash pursuant to the Merger. This discussion does not address U.S. federal income tax consequences with respect to holders other than U.S. holders. This discussion is based on the provisions of the Internal Revenue Code of 1986, as amended (referred to as the “Code”), applicable U.S. Treasury Regulations promulgated thereunder, judicial opinions and administrative rulings and published positions of the Internal Revenue Service (referred to as the “IRS”), each as in effect as of the date hereof. These authorities are subject to change or differing interpretations, possibly on a retroactive basis, and any such change or interpretation could affect the accuracy of the statements and conclusions set forth in this discussion. This discussion is for general information purposes only and does not purport to be a complete analysis of all potential tax consequences. This discussion does not address any tax consequences arising under the unearned income “Medicare” contribution tax pursuant to the Health Care and Education Reconciliation Act of 2010 or the Foreign Account Tax Compliance Act of 2010 (including the Treasury Regulations promulgated thereunder and intergovernmental agreements entered into pursuant thereto or in connection therewith), nor does it address any considerations under state, local or foreign tax laws or U.S. federal tax laws other than those pertaining to U.S. federal income tax. This discussion is not binding on the IRS or the courts and, therefore, the conclusions set forth in this discussion could be subject to challenge, which challenge could be sustained.

For purposes of this discussion, the term “U.S. holder” means a beneficial owner of Company Stock that is for U.S. federal income tax purposes:

 

•

a citizen or resident individual of the United States;

 

•

a corporation, or other entity classified as a corporation for U.S. federal income tax purposes, created or organized in or under the laws of the United States, any state thereof, or the District of Columbia;

 

•

a trust if (i) a court within the United States is able to exercise primary supervision over the trust’s administration, and one or more U.S. persons are authorized to control all substantial decisions of the trust, or (ii) such trust has a valid election in effect under applicable U.S. Treasury Regulations to be treated as a U.S. person; or

 

•

an estate the income of which is subject to U.S. federal income tax regardless of its source.

This discussion applies only to U.S. holders of shares of Company Stock who hold such shares as a capital asset within the meaning of Section 1221 of the Code (generally, property held for investment). Further, this discussion does not purport to consider all aspects of U.S. federal income taxation that may be relevant to a U.S. holder in light of its particular circumstances, or that may apply to U.S. holders subject to special treatment under U.S. federal income tax laws (including, for example, insurance companies, dealers or brokers in securities or foreign currencies, traders in securities who elect to apply the mark-to-market method of accounting, holders subject to the alternative minimum tax, U.S. holders that have a functional currency other than the U.S. dollar, tax-exempt organizations, tax-qualified retirement plans, individual retirement and other tax-deferred accounts, banks and other financial institutions, mutual funds, certain former citizens or former long-term residents of the United States, partnerships (or other entities or arrangements treated as partnerships for U.S. federal income tax purposes), S corporations or other pass-through entities or investors in such partnerships, S corporations or other

 

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pass-through entities, real estate investment trusts, regulated investment companies, U.S. holders who hold shares of Company Stock as part of a hedge, straddle, constructive sale, conversion or other integrated transaction, a holder required to accelerate the recognition of any item of gross income with respect to shares of Company Stock as a result of such income being recognized on an applicable financial statement, U.S. holders who acquired their shares of Company Stock through the exercise of employee stock appreciation rights or other compensation arrangements, and U.S. holders who directly or constructively hold equity of Parent). This discussion also does not address the U.S. federal income tax consequences to holders of shares of Company Stock who exercise appraisal rights in connection with the Merger under the DGCL.

If a partnership (including for this purpose any entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds shares of Company Stock, the tax treatment of a partner in such partnership will generally depend on the status of the partner and the activities of the partnership. If you are, for U.S. federal income tax purposes, a partner in a partnership holding shares of Company Stock, you should consult your tax advisor.

This discussion of material U.S. federal income tax consequences is for general information purposes only and is not tax advice. Holders of Company Stock are urged to consult their own tax advisors to determine the particular tax consequences to them of the Merger, including the applicability and effect of the alternative minimum tax, the unearned income “Medicare” contribution tax and any other U.S. federal, state, local, foreign income or other tax laws.

The receipt of cash by U.S. holders in exchange for shares of Company Stock pursuant to the Merger will be a taxable transaction for U.S. federal income tax purposes. In general, for U.S. federal income tax purposes, a U.S. holder who receives cash in exchange for shares of Company Stock pursuant to the Merger will recognize gain or loss in an amount equal to the difference, if any, between (i) the amount of cash received and (ii) the U.S. holder’s adjusted tax basis in its shares of Company Stock.

Any such gain or loss will be long-term capital gain or loss if a U.S. holder’s holding period in the shares of Company Stock surrendered in the Merger is greater than one year as of the date of the Merger. Long-term capital gains of certain non-corporate holders, including individuals, are generally subject to U.S. federal income tax at preferential rates. The deductibility of capital losses is subject to limitations. If a U.S. holder acquired different blocks of Company Stock at different times or different prices, such U.S. holder must determine its adjusted tax basis and holding period separately with respect to each block of Company Stock.

Information Reporting and Backup Withholding

Payments made in exchange for shares of Company Stock pursuant to the Merger may be subject, under certain circumstances, to information reporting and backup withholding (currently at a rate of 24%). To avoid backup withholding, a U.S. holder that does not otherwise establish an exemption should complete and return to the applicable withholding agent a properly completed and executed IRS Form W-9, certifying under penalties of perjury that such U.S. holder is a “United States person” (within the meaning of the Code), that the taxpayer identification number provided is correct and that such U.S. holder is not subject to backup withholding.

Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be refunded by the IRS or credited against a holder’s U.S. federal income tax liability, if any, provided that such holder furnishes the required information to the IRS in a timely manner.

Regulatory Approvals

Antitrust Clearance. Completion of the Merger is conditioned on the expiration or early termination of the applicable waiting period under the HSR Act. The Company and Orion Opportunity LP filed their respective Notification and Report Forms with the Antitrust Division and the FTC on May 14, 2021. The waiting period under the HSR Act is expected to expire on June 14, 2021.

 

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CFIUS Approval. Completion of the Merger is conditioned on receipt of CFIUS Approval. The Company is seeking CFIUS Approval due to the domicile of one of the beneficial owners of Parent. The Company filed its draft CFIUS Joint Voluntary Notice on May 21, 2021 and expects to receive CFIUS Approval by or before or during the second half of 2021. See the section of this proxy statement entitled “Summary — Regulatory Approvals”.

Telecommunications Approval. Completion of the Merger is conditioned on the consent to the transfer of control of the Company Communications Licenses (as defined in the Merger Agreement) by the FCC and certain specified telecommunications regulatory entities in foreign jurisdictions. The Company and Parent filed transfer of control applications on May 21, 2021 and May 24, 2021 for the Company Communications Licenses issued by the FCC and the Company anticipates submitting the remaining filings in the coming weeks.

FDI and National Security Approvals. Completion of the Merger is conditioned on the receipt of approvals from certain specified investment and national security regulatory entities in foreign jurisdictions. The Company made one such filing on May 21, 2021 and anticipates submitting the remaining filings in the coming weeks.

Commitments to Obtain Regulatory Approval. The Company, Parent, and Merger Sub are each required to use their respective reasonable best efforts to promptly take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other in doing, all things necessary, proper or advisable under applicable laws to consummate and make effective the transactions contemplated by the Merger Agreement (including with respect to the foregoing required regulatory approvals), subject to certain limitations. See the section of this proxy statement entitled “The Merger Agreement — Efforts to Complete the Merger — Antitrust Matters.”

Filing Fees. ORBCOMM and Parent have each agreed to pay 50% of all filing fees and similar fees payable in connection with obtaining any required regulatory approval.

Delisting and Deregistration of the Common Stock

If the Merger is completed, the Common Stock will be delisted from the NASDAQ and deregistered under the Exchange Act.

 

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THE MERGER AGREEMENT

The following is a summary of the material provisions of the Merger Agreement, a copy of which is attached as Annex A to this proxy statement. This summary does not purport to be complete and may not contain all of the information about the Merger Agreement that is important to you. We encourage you to read carefully the Merger Agreement in its entirety, as the rights and obligations of the parties thereto are governed by the express terms of the Merger Agreement and not by this summary or any other information contained in this proxy statement.

Explanatory Note Regarding the Merger Agreement

The following summary of the Merger Agreement, and the copy of the Merger Agreement attached as Annex A to this proxy statement, are intended to provide information regarding the terms of the Merger Agreement and are not intended to provide any factual information about ORBCOMM or modify or supplement any factual disclosures about ORBCOMM in its public reports filed with the SEC. In particular, the Merger Agreement and the related summary are not intended to be, and should not be relied upon as, disclosures regarding the actual state of any facts and circumstances relating to ORBCOMM. The Merger Agreement contains representations and warranties by, and covenants of, ORBCOMM, Parent and Merger Sub, and they were made only for purposes of the Merger Agreement and as of specified dates. The representations, warranties and covenants in the Merger Agreement were made solely for the benefit of the parties to the Merger Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts, and may be subject to contractual standards of materiality or material adverse effect applicable to the contracting parties that generally differ from those applicable to investors. In addition, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in ORBCOMM’s public disclosures. The representations, warranties and covenants in the Merger Agreement and any descriptions thereof should be read in conjunction with the disclosures in ORBCOMM’s periodic and current reports, proxy statements and other documents filed with the SEC. See the section of this proxy statement entitled “Where You Can Find Additional Information.” Moreover, the description of the Merger Agreement below does not purport to describe all of the terms of such agreement and is qualified in its entirety by reference to the full text of such agreement, a copy of which is attached as Annex A to this proxy statement and is incorporated by reference herein in its entirety.

Additional information about ORBCOMM may be found elsewhere in this proxy statement and ORBCOMM’s other public filings. See the section of this proxy statement entitled “Where You Can Find Additional Information.”

Structure of the Merger; Certificate of Incorporation; Bylaws; Directors and Officers

At the Effective Time, Merger Sub will merge with and into ORBCOMM, and the separate corporate existence of Merger Sub will cease. ORBCOMM will be the surviving corporation in the Merger and will continue its corporate existence as a Delaware corporation and a wholly owned subsidiary of Parent. At the Effective Time, the certificate of incorporation of ORBCOMM, as amended and restated in its entirety to read as set forth in the Merger Agreement, and the bylaws of Merger Sub in effect immediately prior to the Effective Time (except that the name of the surviving corporation shall be the name of ORBCOMM), will be the form of the certificate of incorporation and bylaws, respectively, of the surviving corporation in the Merger, in each case until amended as provided therein or by applicable law.

The directors of Merger Sub immediately prior to the Effective Time will become the initial directors of the surviving corporation. The officers of ORBCOMM immediately prior to the Effective Time will become the initial officers of the surviving corporation.

 

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When the Merger Becomes Effective

The closing of the Merger will take place (i) on the third business day following the satisfaction or waiver of all of the conditions set forth in the Merger Agreement (other than those conditions that by their nature are to be satisfied at the closing, but subject to the satisfaction or waiver of such conditions at such time); provided, that if the marketing period has not ended on or prior to the time the closing would have otherwise been required to occur pursuant to the foregoing, the closing will occur on the date following the satisfaction or waiver of such conditions that is the earlier to occur of (x) a business day during the marketing period specified by Parent on no fewer than three business days’ prior written notice to ORBCOMM and (y) the first business day following the final day of the marketing period (subject, in the case of each of the foregoing clauses (x) and (y), to the satisfaction or (to the extent permitted by applicable law) waiver of all of the conditions set forth in the Merger Agreement (other than those conditions that by their nature are to be satisfied at the closing of the Merger, but subject to the satisfaction or waiver of such conditions at such time) as of the date determined pursuant to this proviso) or (ii) at such other date, time, or place as agreed to in writing by Parent and ORBCOMM. The date on which the Closing actually occurs is referred to herein as the “Closing Date.” For purposes of the Merger Agreement, “business day” refers to any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized by Law to close in New York, New York.

For purposes of the Merger Agreement, “marketing period” means the first period of 15 consecutive business days after the date of the Merger Agreement throughout which (a) Parent has received certain specified information about ORBCOMM (the “Required Financial Information”) from ORBCOMM and (b) the mutual conditions to the parties’ obligations to consummate the Merger and the conditions to the obligations of Parent and Merger Sub to consummate the Merger have been satisfied (other than those conditions that by their nature are to be satisfied at the closing of the Merger), assuming that the Closing Date were to be scheduled for any time during such 15 consecutive business day period, or waived; provided, (i) the marketing period shall end on any earlier date if the debt financing is consummated on such earlier date, (ii) the marketing will not commence and will not be deemed to be commenced if prior to the completion of the 15 consecutive business day period, (1) ORBCOMM’s independent auditors have withdrawn its audit opinion with respect to any year-end audited financial statements of ORBCOMM and its subsidiaries included in the Required Financial Information, in which case the marketing period will not be deemed to commence unless and until such independent auditors or another nationally recognized independent accounting firm reasonably acceptable to Parent has issued an unqualified audit opinion with respect to such financial statements or (2) any of the financial statements of ORBCOMM and its subsidiaries included in the Required Financial Information shall have been restated or ORBCOMM has determined or publicly announced that a restatement of any financial statements of ORBCOMM and its subsidiaries included in the Required Financial Information is required, in which case the marketing period shall not be deemed to commence unless and until such restatement has been completed and the Required Financial Information has subsequently been amended and delivered to Parent or ORBCOMM has determined in writing or publicly announced, as applicable, that no such restatement will be required, (iii) if such 15 consecutive business day period has not ended on or prior to (x) August 20, 2021, then such 15 consecutive business day period shall not commence until September 7, 2021 and (y) December 17, 2021, then such 15 consecutive business day period shall not commence until January 3, 2022, and (iv) July 5, 2021 and November 24, 2021 through November 26, 2021 shall not constitute a business day for purposes of such 15 consecutive business day period.

On the Closing Date, ORBCOMM and Parent will file a certificate of merger with the Secretary of State of the State of Delaware. The Merger will become effective at the time when the certificate of merger has been duly filed with the Secretary of State of the State of Delaware, or at such later time as may be agreed by the parties in writing and specified in the certificate of Merger (such time, the “Effective Time”).

Effect of the Merger on the Common Stock

At the Effective Time, (i) each share of Common Stock (“Common Shares”) issued and outstanding immediately prior to the Effective Time (excluding Cancelled Shares, Converted Shares and Dissenting Shares (each as

 

61

defined below)) will automatically be cancelled and converted into the right to receive the Common Stock Merger Consideration and (ii) each share of Series A convertible preferred stock (the “Preferred Shares”, and together with the Common Shares, the “Shares”) issued and outstanding immediately prior to the Effective Time (excluding Cancelled Shares, Converted Shares and Dissenting Shares) will, at the Effective Time, automatically be cancelled and converted into the right to receive the Preferred Stock Merger Consideration, in each case, upon surrender of certificates or book-entry shares. The Merger Consideration will be paid without interest and is subject to any required tax withholdings.

At the Effective Time, each of the Cancelled Shares will automatically be canceled and will cease to exist without payment of any consideration therefor. In addition, at the Effective Time, each of the Converted Shares will automatically be converted into shares of Common Stock, par value $0.001 per share, of the surviving corporation, such that each such subsidiary’s ownership percentage of the surviving corporation immediately after the Effective Time will equal its ownership percentage in ORBCOMM immediately prior to the Effective Time.

Treatment of Company Equity Awards

Company Restricted Stock Unit Awards. Unless otherwise agreed in writing with any individual holder of a Company RSU Award, at the Effective Time, each Company RSU Award, whether vested or unvested, that is outstanding immediately prior to the Effective Time and (a) is subject solely to time-vesting conditions will become fully vested (to the extent unvested) as to any time-vesting conditions and nonforfeitable, and will be cancelled and converted automatically into the right to receive an amount in cash equal to the Common Stock Merger Consideration for each share of Common Stock subject to such Company RSU Award or (b) is subject to performance-based vesting or other performance-based lapse restrictions shall become vested and nonforfeitable with respect to a number of shares of Common Stock subject to such Company RSU Award calculated based on target level of performance, and will be cancelled and converted automatically into the right to receive an amount in cash equal to the Common Stock Merger Consideration for each vested share of Common Stock subject to such Company RSU Award, in each case, subject to applicable tax withholding.

Company Stock Appreciation Right Awards. Unless otherwise agreed in writing with any individual holder of a Company RSU Award, at the Effective Time, each Company SAR Award, whether vested or unvested, that is outstanding and unexercised immediately prior to the Effective Time will become fully vested (to the extent unvested) and be converted into the right to receive an amount in cash equal to the product of (1) the excess of the Common Stock Merger Consideration over the grant price per share of Common Stock of such Company SAR Award, multiplied by (2) the total number of shares of Common Stock subject to such Company SAR Award, subject to applicable tax withholding. Any Company SAR Award that has a grant price per share of Common Stock that is greater than or equal to the Common Stock Merger Consideration will, as of the Effective Time, be cancelled for no consideration.

Company Market Performance Unit Award. At the Effective Time, each Company MPU Award that is outstanding immediately prior to the Effective Time shall become vested and nonforfeitable with respect to all or a portion of such Company MPU Award, with such portion to be calculated based on the greater of (i) achievement of the applicable performance goal as calculated based on the Common Stock Merger Consideration and (ii) the achievement of the applicable Achievement Percentage, and such Company MPU Award shall be cancelled and converted automatically into the right to receive an amount in cash equal to the payout amount determined under the applicable award agreement based on the Achievement Percentage as applied to the applicable tranche of Company MPU Award, subject to applicable tax withholding.

Payment for Shares in the Merger

At or prior to the Effective Time, Parent will deposit, or cause to be deposited, with a paying agent in trust for the benefit of holders of Shares, cash sufficient to pay the aggregate Merger Consideration.

 

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As soon as reasonably practicable (and no later than three business days) after the Effective Time, the surviving corporation shall cause the paying agent to mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding Shares (other than Cancelled Shares, Converted Shares and Dissenting Shares) (i) a letter of transmittal and (ii) instructions for effecting the surrender of such certificates to the paying agent in exchange for payment of the Merger Consideration. Upon surrender to the paying agent of certificates, together with the letter of transmittal, duly completed and validly executed, and such other customary documents as may be reasonably required, the holder of such certificates will be entitled to receive payment of the Merger Consideration which the holder is entitled to pursuant to the Merger Agreement in respect of each Share formerly represented by such certificate (without interest and after giving effect to any required tax withholding).

As soon as reasonably practicable after the Effective Time, Parent will, or will cause the surviving corporation to, cause the paying agent to pay and deliver to each holder of non-certificated Shares represented by book-entry (other than Cancelled Shares, Converted Shares and Dissenting Shares) the applicable Merger Consideration in accordance with the Merger Agreement in respect of each such Share formerly represented by book-entry.

Representations and Warranties

The Merger Agreement contains representations and warranties of ORBCOMM, subject to certain exceptions in the Merger Agreement, in ORBCOMM’s confidential disclosure letter delivered in connection with the Merger Agreement and in ORBCOMM’s public filings, as to, among other things:

 

•

due organization of ORBCOMM and its subsidiaries;

 

•

ownership of subsidiaries;

 

•

capitalization;

 

•

corporate power and authority relating to the execution, delivery and performance of the Merger Agreement;

 

•

consents and approvals relating to the execution, delivery and performance of the Merger Agreement and consummation of the Merger and the absence of certain violations related thereto;

 

•

the forms, documents and reports required to be filed or furnished with the SEC, accuracy of the consolidated financial statements of ORBCOMM included in such documents, the establishment and maintenance of certain disclosure controls and procedures and internal control over financial reporting, the absence of material unresolved complaints, allegations, assertions or claims regarding ORBCOMM’s accounting or auditing practices and compliance in all material respects with applicable listing and corporate governance rules and regulations of the NASDAQ;

 

•

the absence of certain changes or events;

 

•

the accuracy of the information supplied for the purposes of this proxy statement;

 

•

compliance with applicable laws and ORBCOMM’s permits;

 

•

tax returns and other tax matters;

 

•

the absence of undisclosed liabilities;

 

•

the absence of certain actions, proceedings or orders;

 

•

employee benefit plans and other agreements, plans and policies with or concerning employees;

 

•

intellectual property;

 

•

material contracts;

 

•

real and personal property matters;

 

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•

the absence of certain liabilities relating to, and violations of, environmental laws;

 

•

insurance policies;

 

•

broker’s fees;

 

•

the opinion of ORBCOMM’s financial advisor;

 

•

the inapplicability of anti-takeover laws and anti-takeover provisions in the organizational documents of ORBCOMM to the transactions contemplated by the Merger Agreement; and

 

•

affiliate transactions.

The Merger Agreement also contains representations and warranties of Parent and Merger Sub, subject to certain exceptions in the Merger Agreement and Parent’s confidential disclosure letter delivered in connection with the Merger Agreement, as to, among other things:

 

•

due organization;

 

•

the operations of Merger Sub;

 

•

corporate power and authority relating to the execution, delivery and performance of the Merger Agreement;

 

•

consents and approvals relating to the execution, delivery and performance of the Merger Agreement and the absence of certain violations with respect thereto;

 

•

the accuracy of the information supplied for the purposes of this proxy statement;

 

•

the absence of certain actions, proceedings or orders;

 

•

the enforceability of the executed Equity Commitment Letter and Debt Commitment Letter providing for a commitment to provide equity financing and debt financing, respectively, to Parent, and the sufficiency of the proceeds to be disbursed under the commitment letters, together with other sources of financing available to Parent, to pay the aggregate Merger Consideration and the other amounts payable under the Merger Agreement, and the enforceability of the commitment letters;

 

•

the enforceability of the Limited Guaranty delivered by certain funds advised by GI Partners agreeing to fund certain obligations of Parent in connection with the Merger Agreement;

 

•

the absence of beneficial ownership of Shares by Parent and its subsidiaries;

 

•

broker’s fees;

 

•

solvency; and

 

•

sanctions.

Some of the representations and warranties in the Merger Agreement are qualified by materiality qualifications or a “Company Material Adverse Effect” or “Parent Material Adverse Effect” qualification, as discussed below.

For purposes of the Merger Agreement, a “Company Material Adverse Effect” means any fact, circumstance, change, event, occurrence or effect that (i) has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the financial condition, business or results of operations of ORBCOMM and its subsidiaries, taken as a whole or (ii) materially impairs or prevents, or would reasonably be expected to materially impair or prevent, ORBCOMM from consummating the Merger. However, none of the following, and no effect arising out of, relating to or resulting from the following, will constitute or be taken into account in determining whether there has been, or would reasonably be expected to be, a Company Material Adverse Effect:

 

•

any facts, circumstances, changes, events, occurrences or effects generally affecting (A) the industries in which ORBCOMM and its subsidiaries operate or (B) the economy, credit, debt, securities or

 

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financial or capital markets in the United States or elsewhere in the world, including changes in interest or exchange rates or deterioration in the credit markets generally; or

 

•

any facts, circumstances, changes, events, occurrences or effects to the extent arising out of, resulting from or attributable to (A) changes or prospective changes in law, in GAAP or in accounting standards, or any changes or prospective changes in the interpretation or enforcement of any of the foregoing, (B) entry into and consummation and performance of the Merger Agreement (including any action taken or omitted to be taken by ORBCOMM at the request of or with the written consent of Parent or Merger Sub) and the transactions contemplated thereby and the public announcement thereof (except with respect to any representation or warranty in the Merger Agreement that is intended to address the consequences of the entry into, public announcement, pendency, consummation or performance of, the Merger Agreement), (C) acts of war or any outbreak of hostilities, sabotage, terrorism or cyber-attack, or any escalation or worsening thereof, (D) weather, pandemics (including COVID-19), earthquakes, hurricanes, tornados, natural disasters, climatic conditions or other force majeure events, whether or not weather-related, (E) any law or directive issued by a governmental entity providing for business closures, changes to business operations, “sheltering-in-place” or other restrictions that relate to, or arise out of, an epidemic, pandemic or disease outbreak (including COVID-19) or any change in such law, directive or interpretation thereof following the date of the Merger Agreement or ORBCOMM’s or any of its subsidiaries’ compliance therewith, (F) regulatory, legislative and political conditions or developments, (G) any change resulting or arising from the identity of, or any facts or circumstances relating to, Parent, Merger Sub or their respective affiliates, (H) any decline in the market price, or change in trading volume, of the Common Shares (or the volatility thereof), or (I) any failure to meet any internal or public projections, forecasts or estimates of revenue, earnings, cash flow or cash position, or other metrics.

However, with respect to the matters described in the first bullet above and clauses (A), (C), (D), (E) and (F) of the second bullet above, such effects may be taken into account to the extent they have a disproportionate adverse effect on ORBCOMM and its subsidiaries, taken as a whole, in relation to others in the industries of ORBCOMM and its subsidiaries. In addition, with respect to the effects described in clauses (H) and (I) of the second bullet above, the underlying cause of any such effects may be taken into account unless such underlying cause is otherwise excluded by the Merger Agreement.

For purposes of the Merger Agreement, a “Parent Material Adverse Effect” means any fact, circumstance, change, event, occurrence or effect that, individually or in the aggregate, materially impairs, materially delays or prevents, or would reasonably be expected to materially impair, materially delay or prevent, Parent or Merger Sub from consummating the Merger prior to the Termination Date.

Conduct of Business Pending the Merger

The Merger Agreement provides that, from and after the date of the Merger Agreement and prior to the Effective Time or earlier termination of the Merger Agreement, except with Parent’s prior written consent (which consent may not be unreasonably withheld, delayed or conditioned), as required by applicable law, as expressly contemplated in the Merger Agreement, or set forth in ORBCOMM’s confidential disclosure letter, ORBCOMM will, and will cause its subsidiaries to, (i) conduct its business in all material respects in the ordinary course consistent with past practice and (ii) use commercially reasonable efforts to preserve its business organization intact and maintain existing relations with key customers, suppliers, partners, and other third parties with whom ORBCOMM and its subsidiaries have significant business relationships.

In addition, from and after the date of the Merger Agreement and prior to the Effective Time or earlier termination of the Merger Agreement, except with Parent’s prior written consent (which consent may not be unreasonably withheld, delayed or conditioned), as required by applicable law, as expressly contemplated in the

 

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Merger Agreement, or set forth in ORBCOMM’s confidential disclosure letter, ORBCOMM will not, and will not permit any of its subsidiaries to, take any of the following actions:

 

•

declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or equity interests, except for (i) in connection with intercompany transactions with its subsidiaries and (ii) dividends payable with respect to the Preferred Shares;

 

•

other than in the case of wholly owned subsidiaries, split, combine, subdivide, adjust, amend the terms of or reclassify any of its capital stock or equity interests;

 

•

issue, deliver, sell, pledge, grant, transfer or otherwise encumber any shares of its capital stock or other equity securities or any option, warrant or other right to acquire or receive any shares of its capital stock or other equity securities, redeem, purchase or otherwise acquire any shares of its capital stock or other equity securities, other than (A) in connection with the exercise, vesting or settlement, as applicable, of any Company RSU Awards, Company SAR Awards and/or Company MPU Awards outstanding as of the date of the Merger Agreement, (B) the issuance of Common Shares in respect of a participant’s accumulated contributions under ORBCOMM’s ESPP in accordance with ORBCOMM’s ESPP at the conclusion of the final offering thereof, (C) the issuance by the Company or any of its wholly owned subsidiaries of any shares of capital stock or equity interest to the Company or any wholly owned subsidiary of ORBCOMM, (D) the grant of any liens to secure obligations of ORBCOMM or any of its subsidiaries in respect of any permitted indebtedness or (E) the issuance of Common Shares upon conversion of Preferred Shares in accordance with its terms;

 

•

amend their respective organizational documents, except, in the case of its subsidiaries, for amendments that would not be materially adverse to ORBCOMM or adversely impact the transactions contemplated by the Merger Agreement;

 

•

other than (A) acquisitions of property in the ordinary course of business consistent with past practices, (B) pursuant to permitted dispositions, or (C) in connection with intercompany transactions between ORBCOMM and its wholly-owned subsidiaries or among its wholly owned subsidiaries, acquire any entity, business or assets that constitute a business or division of any Person or make any investments in or loans or capital contributions to any third party, in each case for an amount in excess of $2 million in the aggregate;

 

•

other than as contemplated in ORBCOMM’s confidential disclosure letter, make any capital expenditures that exceed $3 million in the aggregate;

 

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other than in the ordinary course of business consistent with past practices or in transactions among wholly owned subsidiaries of ORBCOMM, dispose of any entity, business, rights or assets for a purchase price or, if no purchase price is received, with a value, in excess of $3 million in the aggregate or dispose of any owned real property or mortgage, pledge or subject to any lien (other than certain permitted liens) any real property;

 

•

except for draws under ORBCOMM’s existing revolving credit facility, create, incur, assume or otherwise be liable with respect to, or modify the terms of, any indebtedness for borrowed money in an amount in excess of $2 million in the aggregate, excluding indebtedness solely among ORBCOMM and its wholly owned subsidiaries or among its wholly owned subsidiaries;

 

•

other than in the ordinary course of business consistent with past practices, renew or extend, materially amend or terminate, or waive any material right, remedy or default under, certain material contracts as set forth in the Merger Agreement, or enter into or materially amend any contract that, if existing on the date of the Merger Agreement, would be such a material contract, except (A) as otherwise permitted by the Merger Agreement or (B) for actions contemplated by the Agreement Related to IDP and OGX, dated as of October 21, 2020, by and between Inmarsat Global Limited and ORBCOMM;

 

•

merge, combine or consolidate ORBCOMM or any of its subsidiaries with and into any other person, other than (A) in the case of any wholly owned subsidiary of the ORBCOMM, to effect any acquisition

 

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or any disposition permitted by the Merger Agreement and (B) intercompany transactions involving ORBCOMM or its wholly owned subsidiaries;

 

•

adopt or enter into a plan of complete or partial liquidation, restructuring, capitalization, reorganization or dissolution (other than with respect to or among wholly owned subsidiaries of ORBCOMM);

 

•

waive, settle or compromise any pending or threatened action against ORBCOMM or any of its subsidiaries, other than waivers, settlements or agreements (A) for an amount not in excess of $1 million in the aggregate, and (B) that do not impose any material restrictions on the operations or businesses of ORBCOMM or its subsidiaries, taken as a whole, or any equitable relief on, or the admission of wrongdoing by, ORBCOMM or any of its subsidiaries;

 

•

except as required by any Company Benefit Plan (as defined in the Merger Agreement), (A) increase the compensation or severance benefits of any director, officer, individual independent contractor or employee of ORBCOMM or any of its subsidiaries, except for increases in base salary and payments of cash incentive compensation to individuals who are not “executive officers” of ORBCOMM in the ordinary course of business consistent with past practices, (B) adopt any material new employee benefit plan or arrangement or materially amend, modify or terminate any existing Company Benefit Plan, in each case, other than (1) as would not materially increase the cost to ORBCOMM or its subsidiaries or (2) offer letters that are entered into in the ordinary course of business consistent with past practices with newly hired employees who are not “executive officers” and that do not provide for any severance benefits, (C) take any action to accelerate the vesting or payment, or the funding of any payment or benefit under, any Company Benefit Plan, (D) recognize any union or other labor organization as the representative of any of the employees of ORBCOMM or any of its subsidiaries or enter into any collective bargaining agreements, (E) hire or terminate the employment or services of any “executive officer” of ORBCOMM, other than a termination for cause or due to permanent disability, (F) permit (1) the commencement of any new offering periods under ORBCOMM’s ESPP, (2) participants to increase deductions under ORBCOMM’s ESPP, or (3) new participants to begin participation in ORBCOMM’s ESPP, or (G) grant to any director, officer, independent contractor or employee of ORBCOMM or any of its subsidiaries any right to reimbursement, indemnification or payment for any taxes;

 

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make any change in financial accounting methods, principles, policies or practices of ORBCOMM or any of its subsidiaries, except insofar as may be required by GAAP or applicable law;

 

•

make (other than in connection with the filing of tax returns in the ordinary course of business consistent with past practices), change or revoke any entity classification election or other material tax election, (B) enter into any settlement or compromise of any material tax liability, (C) file any amended material tax return, (D) adopt or change any material method of tax accounting or material annual tax accounting period (except as may be required by GAAP), (E) enter into any closing agreement relating to any material tax liability, (F) agree to extend the statute of limitations in respect of any material amount of taxes (other than pursuant to extensions of time to file tax returns obtained in the ordinary course of business consistent with past practices that do not require consent of a tax authority), (G) surrender any right to claim a material tax refund, or (H) initiate any material voluntary disclosure with or request any material ruling from a tax authority;

 

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guarantee any indebtedness of a third party, enter into any “keep well” or other agreement to maintain any financial statement condition of a third party or enter into any arrangement having the economic effect of any of the foregoing;

 

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enter into any new line of business outside of ORBCOMM’s and its subsidiaries’ existing businesses on the date of the Merger Agreement;

 

•

announce, implement or effect any reduction in force, layoff or other program resulting in the termination of employees, in each case, that would trigger the WARN Act;

 

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•

fail to renew or maintain material existing insurance policies or comparable replacement policies, other than in the ordinary course of business consistent with past practices;

 

•

make any material change to any privacy policy that would affect ORBCOMM’s ability to collect or use personal data or (B) materially alter the security of IT assets, in each case, other than in the ordinary course of business consistent with past practices or for purposes of complying with applicable law;

 

•

terminate, materially amend, materially modify, renew, extend or cancel, or grant any material waiver or give any material consent under, any real property lease, except for (A) the extension or renewal of any existing real property lease in accordance with its terms and in the ordinary course of business consistent with past practices and (B) the expiration of any real property lease in accordance with its terms;

 

•

bid, offer, or seek to provide service under any U.S. government contract that requires ORBCOMM to have a facility security clearance or otherwise subjects ORBCOMM to a Defense Counterintelligence and Security Agency review pursuant to the National Industrial Security Program;

 

•

provide common carrier telecommunications services in the United States or seek authority to hold common carrier licenses or authorizations pursuant to the Communications Act of 1934, as amended, and all applicable FCC rules and policies, and applicable court orders; or

 

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agree to take, make any commitment to take, or adopt any resolutions of ORBCOMM Board in support of, any of the foregoing.

Access

Subject to certain exceptions and limitations, from and after the date of the Merger Agreement until the earlier of the Effective Time or termination of the Merger Agreement, upon reasonable prior written notice, ORBCOMM shall, and shall cause its subsidiaries, officers, directors and employees to, give to Parent, Merger Sub and their respective representatives reasonable access, during normal business hours, to ORBCOMM’s officers, employees, properties, offices and other facilities, books, contracts and records. In addition, subject to certain limitations, from and after the No-Shop Period Start Date to the Effective Time or the termination of the Merger Agreement, upon the reasonable request of Parent and at reasonable times and upon reasonable prior notice, Parent and members of senior management of ORBCOMM will hold meetings no less frequently than once every two weeks to discuss post-Closing integration plans and progress in connection with Required Governmental Approvals and any other pre-closing filings.

The foregoing will not require ORBCOMM or its subsidiaries to permit access to (a) any inspection or any information that would violate any of its obligations with respect to confidentiality in effect as of the date hereof, (b) any information that is subject to attorney client privilege or other privilege or trade secret protection or the work product doctrine, (c) information that in the reasonable opinion of ORBCOMM would result in a breach of a contract to which ORBCOMM or any of its subsidiaries are bound as of the date hereof or (d) information related to ORBCOMM’s sale process.

All information concerning ORBCOMM and its subsidiaries provided to Parent or Merger Sub or their respective representatives, financing sources or affiliates in connection with the transactions contemplated by the Merger Agreement shall be held in confidence in accordance with the confidentiality agreement between GI Data Infrastructure Fund LP and ORBCOMM, which will remain in full force and effect in accordance with its terms and shall apply to Parent and Merger Sub as if they were direct parties thereto.

 

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Acquisition Proposal; Non-Solicitation

Actions Prior to “No-Shop Period Start Date”

Pursuant to the Merger Agreement, until the No-Shop Period Start Date, ORBCOMM, its subsidiaries, and their respective representatives were permitted to:

 

•

initiate, solicit or knowingly facilitate or knowingly encourage any inquiries, discussions or requests with respect to or the making of any Inquiry;

 

•

engage in or otherwise participate in any discussions or negotiations regarding an Acquisition Proposal or Inquiry or that would reasonably be expected to lead to an Acquisition Proposal; and

 

•

provide any access to its properties, books or records or any non-public information to any Person relating to ORBCOMM or any of its subsidiaries in connection with the foregoing pursuant to an acceptable confidentiality agreement, so long as ORBCOMM provides Parent any information relating to ORBCOMM or any of its subsidiaries that was not previously provided or made available to Parent and ORBCOMM and its subsidiaries shall not pay or reimburse or agree to pay or reimburse the expenses of any such person in connection with any Acquisition Proposals or any inquiries, discussions or requests with respect to or the making of any Inquiry, in each case without the prior written consent of Parent;

provided that, ORBCOMM was required to (a) promptly (and, in any event, within 24 hours) notify Parent orally and in writing (i) if any Acquisition Proposal was received by ORBCOMM, any of its subsidiaries or any of its or their representatives, indicating the identity of the person making such Acquisition Proposal and the material terms and conditions of any such Acquisition Proposal, (ii) if ORBCOMM determines to begin providing non-public information to any person and the identity of such person or persons receiving such non-public information, and (iii) of any change to the financial and other material terms and conditions of any Acquisition Proposal, and (b) otherwise keep Parent reasonably informed of the status and material terms of any such Acquisition Proposal, discussions or negotiations on a reasonably current basis (but in no event more often than once every 48 hours).

From the commencement of the go-shop period on the date of the Merger Agreement until the No-Shop Period Start Date, 57 buyers were contacted regarding their potential interest in exploring a transaction with the Company. Nine prospective buyers entered into executed confidentiality agreements with the Company and were provided with non-public information relating to the Company, and Company management met with four of these parties in-person, telephonically, or via videoconference. None of the Company’s discussions with interested parties has resulted in the submission of an Acquisition Proposal.

For purposes of the Merger Agreement, an “Excluded Party” means any person that submitted a written bona fide proposal prior to the No-Shop Period Start Date, which the ORBCOMM Board determined in good faith no later than the later to occur of (x) one business day after the start of the No-Shop Period Start Date and (y) three business days after ORBCOMM’s receipt of such written Acquisition Proposal (after consultation with its outside counsel and its financial advisor) is or would reasonably be expected to lead to a Superior Proposal (as defined below), provided, that such a person will cease to be an Excluded Party if either (A) at any time after the No-Shop Period Start Date, such person’s proposal is no longer outstanding, or (B) ORBCOMM has not provided Parent with a notice stating that it intends to terminate the Merger Agreement to pursue such person’s proposal on or prior to the 10th business day following the No-Shop Period Start Date.

An “Acquisition Proposal” means any inquiry, proposal or offer from any person (other than Parent and its subsidiaries) relating to, in a single transaction or series of transactions:

 

•

a merger, consolidation, dissolution, liquidation, recapitalization, share exchange, business combination or similar transaction involving ORBCOMM as a result of which the stockholders of ORBCOMM immediately prior to such transaction would cease to own at least 80% of the total voting

 

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power of ORBCOMM or any surviving entity (or any direct or indirect parent company thereof) immediately following such transaction,

 

•

the acquisition by any person of more than 20% of the total voting power represented by the outstanding voting securities of ORBCOMM or any of its subsidiaries if such voting power represents assets that constitute over 20% of the fair market value of the consolidated assets of ORBCOMM and its subsidiaries,

 

•

a tender offer or exchange offer or other transaction which, if consummated, would result in a direct or indirect acquisition by any person of more than 20% of the total voting power represented by the outstanding voting securities of ORBCOMM or any of its Subsidiaries if such voting power represents assets that constitute over 20% of the fair market value of the consolidated assets of ORBCOMM and its subsidiaries, or

 

•

the acquisition in any manner, directly or indirectly, of over 20% of the fair market value of the consolidated assets of ORBCOMM and its subsidiaries, in each case other than the transactions contemplated by the Merger Agreement.

Actions Following “No-Shop Period Start Date”

From the No-Shop Period Start Date (or, with respect to an Excluded Party, so long as such Excluded Party remains an Excluded Party in accordance with the Merger Agreement), ORBCOMM shall not, and shall cause each of its subsidiaries and their respective directors, officers and employees not to, and shall use reasonable best efforts to cause its representatives not to, directly or indirectly:

 

•

initiate, solicit or knowingly facilitate or knowingly encourage any Inquiries;

 

•

engage in or otherwise participate in any discussions or negotiations regarding an Acquisition Proposal or Inquiry or that would reasonably be expected to lead to an Acquisition Proposal, or provide any access to its properties, books or records or any non-public information to any person relating to ORBCOMM or any of its subsidiaries in connection with the foregoing;

 

•

enter into any other acquisition agreement or similar agreement (other than an acceptable confidentiality agreement) with respect to an Acquisition Proposal;

 

•

approve, endorse, declare advisable or recommend any Acquisition Proposal;

 

•

take any action to make the provisions of any takeover statute or any restrictive provision of any applicable anti-takeover provision in the certificate of incorporation or bylaws of ORBCOMM inapplicable to any transactions contemplated by any Acquisition Proposal; or

 

•

authorize, commit to, agree or publicly propose to do any of the foregoing.

Within one business day following the No-Shop Period Start Date, ORBCOMM will notify Parent in writing of the identity of each Excluded Party.

On the No-Shop Period Start Date, ORBCOMM will, and will cause its subsidiaries and its and their directors, officers and employees and shall instruct its affiliates and other representatives to immediately cease all solicitations, discussions and negotiations with any persons (other than Parent and its representatives and any Excluded Party and its representatives so long as such Excluded Party remains an Excluded Party in accordance with the Merger Agreement) that may be ongoing with respect to an Acquisition Proposal and, within five business days of the No-Shop Period Start Date, request that each such person promptly return or destroy all confidential information furnished to such person by or on behalf of ORBCOMM in connection with any such Acquisition Proposal. Notwithstanding the occurrence of the No-Shop Period Start Date, ORBCOMM may continue to engage in the activities permitted during the period prior to the No-Shop Period Start Date with respect to any Excluded Party (so long as such Excluded Party remains an Excluded Party in accordance with the Merger Agreement).

 

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However, at any time following the No-Shop Period Start Date and prior to the time Stockholder Approval is obtained, if ORBCOMM receives a bona fide written Acquisition Proposal from a third party that did not result from a breach of ORBCOMM’s obligations relating to the go-shop period or its non-solicitation obligations and the ORBCOMM Board determines in good faith after consultation with its financial advisor and outside legal counsel (i) that such Acquisition Proposal constitutes, or would reasonably be expected to result in, a Superior Proposal and (ii) that failure to take such action would be reasonably likely to be inconsistent with its fiduciary obligations under applicable law, then ORBCOMM and its representatives may (x) contact the person making such Acquisition Proposal to clarify the terms and conditions thereof so as to determine whether such Acquisition Proposal constitutes, or could reasonably be expected to result in, a Superior Proposal, (y) provide information to such person if ORBCOMM receives an acceptable confidentiality agreement from such person; provided, that ORBCOMM will make available to Parent and Merger Sub any non-public information concerning ORBCOMM or its subsidiaries that is provided to any such person which was not previously made available to Parent or Merger Sub, and (z) engage or participate in any discussions or negotiations with such person, in each case, subject to the requirement that ORBCOMM must:

 

•

promptly (and, in any event, within 24 hours) notify Parent orally and in writing if any Acquisition Proposal is received by ORBCOMM, any of its subsidiaries or any of its or their representatives, indicating the identity of the person making such Acquisition Proposal and the material terms and conditions of any such Acquisition Proposal;

 

•

promptly (and, in any event, within 24 hours) notify Parent orally and in writing (i) if ORBCOMM determines to begin providing non-public information to any person in accordance with the Merger Agreement and the identity of such person receiving such non-public information, (ii) from and after the No Shop Period Start Date (or, with respect to an Excluded Party, from and after the date such Person is no longer an Excluded Party), if ORBCOMM determines to engage in negotiations or discussions concerning an Acquisition Proposal in accordance with the Merger Agreement and (iii) of any change to the financial and other material terms and conditions of any Acquisition Proposal; and

 

•

otherwise keep Parent reasonably informed of the status and material terms of any such Acquisition Proposal, discussions or negotiations on a reasonably current basis (but in no event more often than once every 48 hours), including by providing a copy of all proposals, offers or drafts of proposed agreements.

A “Superior Proposal” means a bona fide written Acquisition Proposal that the ORBCOMM Board has determined in its good faith judgment, after consultation with its financial advisor and outside legal counsel, and taking into consideration all factors (including legal, financial, financing (including availability thereof), and regulatory risks and timing) that the ORBCOMM Board deems relevant, to be more favorable to ORBCOMM’s stockholders from a financial point of view than the transactions contemplated by the Merger Agreement; provided, that for purposes of the definition of “Superior Proposal,” the references to “20%” and “80%” in the definition of Acquisition Proposal shall be deemed to be references to “50%.”

Change in the ORBCOMM Board Recommendation

The ORBCOMM Board has unanimously recommended that ORBCOMM stockholders vote “FOR” the Merger Proposal. Generally, the ORBCOMM Board may not:

 

•

withhold, withdraw, qualify or modify (or publicly propose to withhold, withdraw, qualify or modify), in each case in a manner adverse to Parent, the recommendation of the ORBCOMM Board that ORBCOMM’s stockholders adopt the Merger Agreement;

 

•

fail to include the ORBCOMM Board’s recommendation in this Proxy Statement;

 

•

adopt, approve or recommend or endorse or otherwise declare advisable, or publicly propose to adopt, approve or recommend, any Acquisition Proposal;

 

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•

fail to publicly reaffirm the ORBCOMM Board’s recommendation in connection with the public disclosure by ORBCOMM of an Acquisition Proposal (other than of the type referred to in the immediately succeeding bullet) by any person other than Parent and Merger Sub; provided that ORBCOMM is not required to make such reaffirmation more than once in respect of such public disclosure of an Acquisition Proposal except in connection with any material amendment of such Acquisition Proposal (and no more than once in connection with each such amendment); or

 

•

fail to recommend on Schedule 14D-9 against any Acquisition Proposal that is a tender offer or exchange offer subject to Regulation 14D within 10 business days after the commencement of such tender offer or exchange offer.

The actions described in the bullet points above are referred to as a “Change of Recommendation”.

Prior to the time the Stockholder Approval is obtained, the ORBCOMM Board may (a) effect a Change of Recommendation contemplated by the first two bullets above if, upon the occurrence of an Intervening Event, the ORBCOMM Board determines in good faith, after consultation with its outside legal counsel, that failure to do so would be reasonably likely to be inconsistent with its fiduciary obligations under applicable law or (b) if ORBCOMM receives a written, bona fide Acquisition Proposal that the ORBCOMM Board concludes in good faith, after consultation with its financial advisor and outside legal counsel, constitutes a Superior Proposal and such Acquisition Proposal did not result from a breach of ORBCOMM’s non-solicitation obligations, (x) effect a Change of Recommendation and/or terminate the Merger Agreement in order to enter into an Acquisition Agreement providing for such Superior Proposal, and, in the case of either clause (a) or (b):

 

•

ORBCOMM provides, at least four business days in advance, a Notice of Change of Recommendation/Termination;

 

•

during such four business day period after providing such notice, ORBCOMM negotiates, and causes its representatives to be available to negotiate, with Parent and Merger Sub in good faith to make such adjustments to the terms and conditions of the Merger Agreement as would eliminate the need for ORBCOMM to effect a Change of Recommendation and/or terminate the Merger Agreement; and

 

•

upon the conclusion of such four business day period, the ORBCOMM Board determines in good faith, after consultation with its outside legal counsel and, with respect to clause (A) below, its financial advisor, taking into account any changes to the Merger Agreement proposed by Parent in response to the Notice of Change of Recommendation/Termination, that (A) the Superior Proposal giving rise to the Notice of Change of Recommendation/Termination continues to be a Superior Proposal or (B) in the case of an Intervening Event, the failure of the ORBCOMM Board to effect a Change of Recommendation would continue to be reasonably likely to be inconsistent with its fiduciary obligations under applicable law.

Any amendment to the financial terms or any other material change to the terms of a Superior Proposal shall require ORBCOMM to deliver a new Notice of Change of Recommendation/Termination and ORBCOMM shall be required to comply again with the requirements above, except with a two business day negotiation period instead of a four business day negotiation period.

An “Intervening Event” means a material event, occurrence, development or change in circumstances with respect to ORBCOMM and its subsidiaries, taken as a whole, that occurred or arose after the date of the Merger Agreement, which was neither known to, nor reasonably foreseeable by, the ORBCOMM Board as of the date of the Merger Agreement and becomes known to or by the ORBCOMM Board prior to the time the Stockholder Approval is obtained and does not relate to (i) the receipt, existence of or terms of an Inquiry or Acquisition Proposal or any consequence thereof and (ii) changes in the market price or trading volume of the Common Shares or the fact that ORBCOMM meets or exceeds internal or published projections, budgets, forecasts or estimates of revenues, earnings or other financial results for any period (provided, however, that the underlying causes of such change or fact shall not be excluded).

 

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Company Stockholders Meeting

ORBCOMM has agreed to take all action required under the DGCL and its certificate of incorporation and bylaws to duly call, give notice of and convene and hold a meeting of holders of Shares promptly following the mailing of this proxy statement to consider and vote upon the approval of the Merger Agreement; provided that ORBCOMM may postpone or adjourn the meeting with Parent’s consent, for the absence of a quorum, to allow reasonable additional time to solicit additional proxies if ORBCOMM has not received proxies representing a sufficient number of Common Shares to adopt the Merger Agreement, if required by applicable law or to allow reasonable additional time for the filing and dissemination of any supplemental or amended disclosure; provided that such meeting will not be postponed or adjourned beyond 30 days after the date on which it was originally scheduled without the prior consent of Parent.

Subject to the ORBCOMM Board’s right to make a Change of Recommendation, as described in the section of this proxy statement entitled “Change in the ORBCOMM Board Recommendation,” the ORBCOMM Board must include its recommendation regarding the Merger Agreement in this proxy statement.

Financing and Financing Cooperation

Parent and Merger Sub have obtained committed financing consisting of (i) equity to be provided by the Equity Investors and (ii) debt financing to be provided by the Debt Commitment Parties. In connection with the Merger Agreement, Parent and Merger Sub have delivered to ORBCOMM copies of the Financing Letters. Notwithstanding anything in the Merger Agreement to the contrary, in no event shall the receipt or availability of any funds or financing (including the financing contemplated by the Financing Letters) by or to Parent or any of its affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub under the Merger Agreement.

Equity Financing

The Equity Commitment Letter provides that the Equity Investors will provide, upon the terms and subject to the conditions set forth in the Equity Commitment Letter, an aggregate amount in cash equal to $796.6 million in equity financing for the purpose of funding in part, the payment of the amounts payable under the Merger Agreement, the refinancing of certain of ORBCOMM’s existing indebtedness outstanding as of the closing of the Merger and the payment of fees and expenses related to the transactions, in each case in accordance with the Merger Agreement. The obligations of the members of the Equity Investors to provide the equity financing under the Equity Commitment Letter are subject to a number of conditions, including, but not limited to: (x) the satisfaction or waiver by Parent of each of the conditions to Parent’s obligations to consummate the transactions contemplated by the Merger Agreement pursuant to the Merger Agreement (other than those conditions that by their nature are to be satisfied at the closing, but subject to the satisfaction or waiver of such conditions at the closing), (y) the funding or irrevocable confirmation of the lenders party to the Debt Commitment Letter that all conditions to the funding of the debt financing have been satisfied and the debt financing will be funded at the closing if the equity financing is funded by the Equity Investors at the closing, and (z) the remainder of the equity financing has or will be funded at the closing by the other Equity Investors.

The obligation of the Equity Investors to fund the equity commitment will automatically and immediately terminate upon the earliest to occur of: (i) the closing of the Merger, (ii) the valid termination of the Merger Agreement, and (iii) the date that ORBCOMM or any of its partners, members, stockholders, employees, officers or controlled affiliates institutes certain suits, actions or other legal proceedings.

ORBCOMM is an express third-party beneficiary of the rights granted to Parent under the Equity Commitment Letter for the purpose of obtaining specific performance of Parent’s right to cause the equity commitment to be funded to Parent under the Equity Commitment Letter (solely to the extent that Parent is permitted to enforce the equity commitment pursuant to the terms thereof and of the Merger Agreement).

 

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Debt Financing

The Debt Commitment Letter provides that the Debt Commitment Parties will provide, upon the terms and subject to the conditions set forth in the Debt Commitment Letter, in the aggregate up to $410 million in debt financing (not all of which is expected to be drawn at the closing of the Merger), consisting of the following:

 

•

$360 million senior secured first lien term loan facility; and

 

•

$50 million senior secured first lien revolving facility.

The proceeds of the debt financing will be used (i) to finance, in part, the payment of the amounts payable under the Merger Agreement, the refinancing of certain of ORBCOMM’s existing indebtedness outstanding as of the closing of the Merger and the payment of fees and expenses related to the transactions, (ii) to provide ongoing working capital, and (iii) for other general corporate purposes.

The obligations of the Debt Commitment Parties to provide the debt financing under the Debt Commitment Letter are subject to a number of customary conditions, including, but not limited to (as applicable):

 

•

the consummation of the Merger in accordance with the Merger Agreement as in effect on April 7, 2021 (without giving effect to any amendments, waivers, modifications or consents thereof or thereto that are materially adverse to the Debt Commitment Parties without the consent of the lead arrangers);

 

•

the consummation of the equity financing;

 

•

the absence of a Company Material Adverse Effect since April 7, 2021;

 

•

subject to certain limitations and exceptions, the accuracy in all material respects as of the closing of the Merger of certain specified representations and warranties in the Merger Agreement and certain specified representations and warranties in the loan documents; and

 

•

the borrower having used commercially reasonable efforts to afford the Debt Commitment Parties a marketing period of at least 15 consecutive business days (subject to certain blackout dates) following receipt of certain financial statements.

As of the date hereof, the documentation governing the debt financing contemplated by the Debt Commitment Letter has not been finalized and, accordingly, the actual terms of the debt financing may differ from those described in this proxy statement.

Financing Cooperation

Pursuant to the Merger Agreement, Parent and Merger Sub shall use, and shall cause their respective subsidiaries and their respective officers, directors and employees to use, reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable to obtain the proceeds of the financing on the terms and subject only to the conditions set forth in the Financing Letters. In the event that any portion of the debt financing becomes unavailable, or the Debt Commitment Letter or any definitive agreement for the debt financing shall be withdrawn, repudiated, terminated or rescinded, regardless of the reason therefor, Parent and Merger Sub will use reasonable best efforts to obtain alternative debt financing (in an amount sufficient, when taken together with other available funds, to consummate the Merger and to make all payments required to be made by Parent or Merger Sub in connection therewith) from the same or other sources on terms and conditions that are not less favorable to Parent and its subsidiaries than the terms and conditions set forth in the Debt Commitment Letter.

In connection with the efforts of Parent and Merger Sub to arrange the financing, prior to the closing of the Merger, ORBCOMM shall use its reasonable best efforts to, and shall cause its subsidiaries to use their reasonable best efforts to, and shall use its reasonable best efforts to cause its and their representatives to, provide, in each case at Parent’s sole cost and expense and subject to certain exceptions set forth in the Merger

 

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Agreement, such cooperation as is customary and reasonably requested by Parent in connection with the arrangement of the debt financing, including by:

 

•

making appropriate senior officers of ORBCOMM and its subsidiaries available for participation in a reasonable number of meetings (including meetings with prospective lenders), presentations, road shows, due diligence sessions and sessions with rating agencies;

 

•

executing and delivering definitive agreements with respect to the debt financing and related certificates and other documents as may be reasonably requested by Parent, and to the extent required by the debt financing, reasonably assisting in facilitating the pledging of, and perfection of security interests in, collateral;

 

•

furnishing Parent and the Debt Commitment Parties as promptly as reasonably practicable with the financial statements of ORBCOMM and its consolidated subsidiaries as required by the Debt Commitment Letter and, as promptly as reasonably practicable following the delivery of a request therefor to ORBCOMM by Parent, such financial and other information regarding ORBCOMM and its subsidiaries as is reasonably available to ORBCOMM at such time and is customarily required in connection with the financings of a type similar to the debt financing;

 

•

in each case following Parent’s reasonable request, assisting Parent and Merger Sub in the preparation of customary (A) confidential information memoranda and other customary marketing materials, (B) materials for rating agency presentations and (C) definitive documentation for the debt financing;

 

•

following Parent’s reasonable request, using reasonable best efforts to cause directors and officers who will continue to hold such offices and positions from and after the consummation of the Merger to execute resolutions or consents of ORBCOMM and its subsidiaries with respect to entering into the definitive documentation for the debt financing and otherwise as necessary to authorize consummation of the debt financing;

 

•

if requested by Parent, provide, at least three business days prior to the closing of the Merger, all documentation and other information relating to ORBCOMM and its subsidiaries as is required by applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and including, if ORBCOMM or any of its subsidiaries qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230, a beneficial ownership certification as required by 31 C.F.R. § 1010.230, to the extent requested by Parent in writing at least 10 business days prior to the closing of the Merger;

 

•

executing and delivering one or more customary authorization letters in connection with the confidential information memoranda as contemplated by the Debt Commitment Letter or otherwise that are customarily required in connection with the financings of a type similar to the debt financing;

 

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reasonably cooperating with the marketing and due diligence efforts of Parent and the Debt Commitment Parties for any portion of the debt financing;

 

•

on or prior to the closing of the Merger, delivering customary payoff letters, in form and in substance reasonably satisfactory to Parent and the Debt Commitment Parties, specifying the aggregate amount required to be paid with respect to ORBCOMM’s existing credit facilities and providing for the discharge and release, upon payment of such amounts, of any obligations, guarantees, liens and other security interests with respect thereto; and

 

•

if requested by Parent, assisting Parent in connection with Parent’s preparation of customary pro forma financial statements.

Notwithstanding the foregoing, subject to certain exceptions set forth in the Merger Agreement, neither ORBCOMM nor any of its subsidiaries shall be required to take or permit the taking of any action pursuant to the financing cooperation covenant in the Merger Agreement that would (A) require ORBCOMM, its subsidiaries or any directors, officers or employees of ORBCOMM or its subsidiaries to pass any resolution or consent to

 

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approve or authorize the consummation of the debt financing that is effective prior to the closing of the Merger or execute or deliver any certificate, document, instrument or agreement (other than any prepayment notices required to be delivered with respect to ORBCOMM’s existing credit facilities and customary authorization letters) that is effective prior to the closing of the Merger, (B) cause any representation or warranty in the Merger Agreement to be breached by ORBCOMM or any of its subsidiaries, (C) require ORBCOMM or any of its subsidiaries to pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the debt financing prior to the closing of the Merger unless promptly reimbursed in accordance with the Merger Agreement, (D) cause any director, officer or employee or stockholder of ORBCOMM or any of its subsidiaries to incur any personal liability, (E) conflict with the organizational documents of ORBCOMM or its subsidiaries or any applicable laws, (F) reasonably be expected to result in a material violation or breach of, or a default under, any contract to which ORBCOMM or any of its subsidiaries is a party, (G) provide access to or disclose information that ORBCOMM or any of its subsidiaries determines would jeopardize any attorney-client privilege of ORBCOMM or any of its subsidiaries or could reasonably be expected to result in the disclosure of any trade secrets or violate confidentiality obligations binding ORBCOMM or any of its subsidiaries, (H) prepare any financial statements that are not available to it and prepared in the ordinary course of its financial reporting practice, or (I) result in ORBCOMM or any of its subsidiaries being an issuer or obligor under the debt financing prior to the closing of the Merger.

Parent shall, promptly upon request by ORBCOMM, reimburse ORBCOMM for all reasonable out-of-pocket costs and expenses incurred by ORBCOMM or its subsidiaries or their respective representatives (including reasonable and documented fees and expenses of ORBCOMM’s legal and financial advisors) in connection with the financing cooperation covenant in the Merger Agreement and shall indemnify and hold harmless ORBCOMM and its subsidiaries and their respective representatives from and against any and all losses, damages, claims, judgments, inquiries, fines, costs or expenses suffered or incurred by them in connection with the arrangement of the debt financing, any action taken by them at the request of Parent pursuant to the financing cooperation covenant in the Merger Agreement and any information used in connection therewith (other than information provided in writing by ORBCOMM or its subsidiaries specifically for use in connection with the debt financing), in each case, other than as a result of fraud, bad faith, gross negligence or willful misconduct by such representatives.

Employee Matters

For one year following the Closing Date, Parent will, or will cause its applicable subsidiary to, provide each employee of ORBCOMM and its subsidiaries who continues in employment with Parent, the surviving corporation or their subsidiaries immediately following the Effective Time (collectively, the “Continuing Employees”) with (i) a base salary or regular hourly wage (whichever is applicable) and a short-term cash incentive compensation opportunity, that, in each case, is not less than the base salary or regular hourly wage and short-term cash incentive compensation opportunity in effect for, or available to, the applicable Continuing Employee as of immediately prior to the Effective Time, (ii) severance benefits and on terms and conditions, in each case, that are no less favorable than the severance benefits and protections provided to each such Continuing Employee as of immediately prior to the Effective Time and as set forth in in ORBCOMM’s confidential disclosure schedules and (iii) other compensation opportunities (excluding any equity award or other long-term compensation opportunities) and employee benefits (excluding any severance, change-in-control or retention benefits) that are, in each case, substantially similar in the aggregate to the other compensation (excluding any equity award or other long-term compensation opportunities) and employee benefits (excluding any severance, change-in-control or retention benefits), respectively, provided or available to the applicable Continuing Employee as of immediately prior to the Effective Time.

From and after the Effective Time, Parent will honor and assume, or will cause to be honored and assumed, the terms of all employee benefit plans of ORBCOMM that remain in effect as of the Effective Time in accordance with their terms. In addition, Parent will cause any employee benefit plans of Parent and its subsidiaries in which the Continuing Employees are entitled to participate after the Closing Date to take into account for purposes of

 

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eligibility, vesting and benefit accruals (other than benefit accruals under any defined benefit pension plan or as would result in a duplication of benefits), service prior to the Effective Time by such employees to ORBCOMM and its subsidiaries (and any predecessors) as if such service were with Parent or its subsidiaries. Parent will also honor and assume all accrued but unused vacation or other paid time off.

With respect to any employee benefit plans maintained by Parent and its subsidiaries for the benefit of the Continuing Employees following the Closing Date, Parent will, and will cause the surviving corporation and its subsidiaries to, (i) waive any eligibility requirements or pre-existing condition limitations or waiting period requirements with respect to any such plan providing medical, dental, pharmaceutical or vision benefits to any Continuing Employee to the same extent waived under the analogous employee benefit plans of ORBCOMM prior to the Closing Date, and (ii) give effect, in determining any deductible, co-insurance and maximum out-of-pocket limitations, to any eligible expenses paid by such employees during the calendar year in which the Effective Time occurs (or such later date on which a Continuing Employee commences participation in any new plan of the surviving corporation and its subsidiaries) under analogous employee benefit plans of ORBCOMM.

Unless otherwise agreed to by ORBCOMM, Merger Sub and Parent, cash incentive bonus programs with an in-cycle performance period occurring during the year in which the closing occurs will be paid in the ordinary course of business consistent with past practice, based on actual achievement of the applicable performance goals (which performance goals will not be modified following the closing in a way that would be detrimental to the participants, and such calculation will exclude (i) merger-related transaction costs and (ii) costs and expenses incurred at the request of Parent or in connection with any post-closing restructuring or transaction that Parent desires to take following the Effective Time).

Efforts to Complete the Merger

ORBCOMM, Parent, and Merger Sub and their respective subsidiaries shall, and, with respect to clauses (ii) and (iv) below, shall cause their respective controlling affiliates to, each use their reasonable best efforts to promptly take, or to cause to be taken, all actions, and to do, or to cause to be done, and to assist and cooperate with the other in doing, all things necessary, proper or advisable under the Merger Agreement or applicable law or otherwise to consummate and make effective the transactions contemplated by the Merger Agreement as soon as practicable, including to timely (i) obtain from any governmental entities and any third parties any actions, non-actions, clearances, waivers, consents, approvals, expirations or terminations of waiting periods, permits or orders required to be obtained by ORBCOMM, Parent or any of their respective affiliates, in connection with the authorization, execution, delivery and performance of the Merger Agreement and the consummation of the transactions contemplated by the Merger Agreement, (ii) make all registrations, filings, notifications or submissions which are necessary or otherwise deemed advisable by the parties with respect to the Merger Agreement and the Merger, including with respect to the Required Governmental Approvals, under (A) any applicable federal or state securities Law, (B) the HSR Act and any other applicable Regulatory Law (as defined below) or other applicable laws, including but not limited to those with respect to the Required Governmental Approvals and (C) any other applicable law, (iii) defend against any lawsuits or other legal proceedings, whether judicial or administrative, challenging the Merger Agreement or the consummation of the Merger and the other transactions contemplated by the Merger Agreement, (iv) comply with any request under or with respect to the Required Governmental Approvals and any such other applicable laws for additional information, documents or other materials received by Parent or ORBCOMM from the Federal Trade Commission, the Department of Justice, the FCC, CFIUS, any governmental entities that regulate telecommunications facilities or telecommunications services in the jurisdictions in which ORBCOMM or its subsidiaries have such facilities or conduct business as of the date of Merger Agreement or any other governmental entity in connection with such applications or filings or the Merger, and (v) execute and deliver any additional instruments necessary to consummate the transactions contemplated by the Merger Agreement.

For purposes of the Merger Agreement “Regulatory Law” means (i) the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, Section 721 of the Defense

 

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Production Act of 1950, as amended, the Communications Act of 1934, as amended, applicable laws governing telecommunications services, equipment and/or facilities in any non-U.S. jurisdiction, and all other foreign or domestic Laws that are designed or intended to prohibit, restrict or regulate (i) foreign investment, (ii) foreign exchange or currency controls or (iii) actions having the purpose or effect of monopolization, restraint of trade or lessening of competition.

ORBCOMM, Parent, and Merger Sub have agreed to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transaction contemplated by the Merger Agreement no later than five business days after the later of the No-Shop Period Start Date and the date on which there is no longer any Excluded Party and to make, or cause to be made, all filings and authorizations, if any, required under any other applicable Regulatory Law (including, (i) with respect to CFIUS Approval, making a pre-notice filing with U.S. Department of Treasury under the DPA, and (ii) any other filings as may be required or otherwise deemed advisable by the Parties after good faith discussions) no later than 10 business days after the later of the No-Shop Period Start Date and the date on which there is no longer any Excluded Party. ORBCOMM, Parent and Merger Sub have also agreed to use their reasonable best efforts to supply, or cause to be supplied, as promptly as reasonably practicable any additional information and material that may be requested by a governmental entity pursuant to any Regulatory Law.

ORBCOMM and Parent will (and will cause their respective subsidiaries to), and Merger Sub will, use its reasonable best efforts to resolve any objections asserted with respect to the transactions contemplated by the Merger Agreement under any Regulatory Law. If any legal action is instituted (or threatened to be instituted) challenging the transactions contemplated by the Merger Agreement as violative of any Regulatory Law, ORBCOMM and Parent will (and will cause their respective subsidiaries to), and Merger Sub will, cooperate in all respects and use its respective reasonable best efforts to contest and resist any such legal action and to have vacated, lifted, reversed or overturned any order, judgment, writ, stipulation, settlement, award, injunction, decree, arbitration award or finding of any governmental entity (whether temporary, preliminary or permanent) that is in effect and that restricts, prevents or prohibits consummation of the transactions contemplated by the Merger Agreement.

Each of ORBCOMM, Parent and Merger Sub shall (i) cooperate with each other with respect to all matters relating to any governmental entity in respect of or relating to any regulatory, governmental, CFIUS, the FCC and all other governmental entities that regulate telecommunications facilities or telecommunications services in the jurisdictions in which ORBCOMM or its subsidiaries have such facilities or conduct business as of the date of the Merger Agreement, or matters including devising and implementing the strategy for obtaining the Required Governmental Approvals or any other necessary regulatory or governmental approvals or clearances, (ii) subject to any restrictions under any Regulatory Law, promptly notify each other of any material communication to that party from any governmental entity with respect to the Merger Agreement and the transactions and other agreements contemplated thereby and permit the other parties to review in advance any proposed material communication to any governmental entity, (iii) unless required by applicable law, not agree to participate in any meeting or teleconference with any governmental entity in respect of any filing, investigation or other inquiry with respect to the Merger Agreement and the transactions and other agreements contemplated thereby unless it consults with the other parties in advance and, to the extent permitted by such governmental entity, gives the other parties the opportunity to attend and participate thereat, (iv) subject to any restrictions under any Regulatory Law, furnish the other parties with copies of all material correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its subsidiaries and their respective representatives on the one hand, and any governmental entity or members of its staff on the other hand, with respect to the Merger Agreement and the transactions and other agreements contemplated thereby (excluding any documents and communications which are subject to the attorney-client privilege or other privilege or trade secret protection or the work product doctrine), and (v) furnish the other parties with such necessary information and reasonable assistance as such other parties may reasonably request in connection with their preparation of necessary filings, registrations or submissions of information to any governmental entity in connection with the Merger Agreement and the transactions and other agreements contemplated thereby,

 

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provided that the parties may reasonably designate competitively sensitive material provided pursuant to the Merger Agreement as “outside counsel only material”.

Parent and Merger Sub will use reasonable best efforts to take all actions reasonably necessary to address concerns raised in connection with any Required Governmental Approvals so as to secure such Required Governmental Approvals, including, as applicable: (i) (x) entering into a mitigation agreement, national security agreement or other similar arrangement or agreement, or (y) providing a letter of assurance or other similar assurance, in each case, as requested or imposed by a governmental entity, (ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such businesses, product lines, or assets of Parent or its subsidiaries (including the surviving corporation after the closing), and (iii) otherwise taking or committing to take actions that after the closing would limit Parent’s freedom of action with respect to, or its or their ability to operate and/or retain, one or more of the businesses, product lines, or assets of Parent or the surviving corporation and/or their respective subsidiaries. However, Parent or Merger Sub will not be required to take any action or make any undertaking contemplated by the immediately preceding sentence, or agree to any remedy or condition to obtain the expiration of any applicable waiting period under any law, to obtain any required consent or other approval from any governmental entity under any law, or to prevent the entry of, or have vacated, lifted, reversed or otherwise overturned, any applicable injunction, judgment or other order issued under any law:

 

•

that would require any such action or undertaking by, or would impose any such condition or restriction on, any of Parent’s affiliates (other than ORBCOMM or its subsidiaries or, after the Effective Time, the surviving corporation or its subsidiaries) or any direct or indirect portfolio companies of investment funds advised or managed by one or more affiliates of Parent or any investment funds advised or managed by one or more affiliates of Parent;

 

•

that would have a Company Material Adverse Effect (excluding the provisions of the proviso to the definition of such term); or

 

•

that would (x) have a material adverse impact on Parent’s ability to own, control, manage or operate ORBCOMM and its subsidiaries subsequent to the closing, or (y) have a material and adverse impact on the ability of GI Data Infrastructure Fund LP or its affiliates to own, control, manage or operate Parent and its subsidiaries subsequent to closing through the exercise of its voting or board representation rights or its right to receive information.

ORBCOMM agrees to (and to cause its subsidiaries to) use commercially reasonable efforts to (i) make cash on hand of ORBCOMM and its subsidiaries available at the closing to fund Merger Amounts to the extent requested by Parent and (ii) assist Parent in taking such actions that are reasonably requested in connection with any post-closing restructuring that it desires to take at or following the Effective Time.

Indemnification and Insurance

From and after the Effective Time, the surviving corporation will, and Parent will cause the surviving corporation to, indemnify and hold harmless, to the fullest extent permitted under applicable law, each present and former director and officer of ORBCOMM and its subsidiaries, and each fiduciary of a company benefit plan (collectively, together with such person’s heirs, executors or administrators, the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement incurred in connection with any actual or threatened action, whether civil, criminal, administrative or investigative, arising out of, related to or in connection with any action or omission occurring or alleged to have occurred whether prior to or at the Effective Time (including in connection with such Indemnified Parties’ service as a director or officer of ORBCOMM or any of its subsidiaries or a fiduciary of a company benefit plan or services performed by such persons at the request of or for the benefit of ORBCOMM or its subsidiaries), whether asserted or claimed prior to, at or after the Effective Time. In addition, from and after the Effective Time, each of Parent and the surviving corporation will advance costs and expenses

 

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(including attorneys’ fees) as incurred by any Indemnified Party promptly after receipt by Parent of a written request for such advance to the fullest extent permitted under applicable law; provided, that the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately and finally determined by a court of competent jurisdiction that such Person is not entitled to indemnification. For six years from and after the Effective Time, Parent will cause the ORBCOMM certificate of incorporation and bylaws to contain provisions no less favorable to the Indemnified Parties with respect to indemnification, exculpation from liabilities and rights to advancement of expenses than those set forth in ORBCOMM’s certificate of incorporation and bylaws as of the date of the Merger Agreement, which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of any Indemnified Party.

In addition, prior to the Effective Time, ORBCOMM will obtain and fully prepay the premium for a six-year “tail” insurance policy for claims arising from facts, acts, events or omissions that occurred on or prior to the Effective Time. If ORBCOMM fails to obtain such tail policy prior to the Effective Time, the surviving corporation shall obtain such a tail policy or continue to maintain in effect for a period of six years from and after the Effective Time the directors’ and officers’ liability insurance policies in place as of the date of the Merger Agreement. Any such tail policy or continued policy must have terms, conditions, retentions, coverage limits and limits of liability that are at least as favorable as the coverage provided in ORBCOMM’s existing policies as of the date of the Merger Agreement with a claims period of six years from the Effective Time. Notwithstanding the foregoing, in no event will ORBCOMM and its subsidiaries (or the surviving corporation, as applicable) be required to expend a premium in excess of 300% of the aggregate annual amount currently paid by ORBCOMM and its subsidiaries for such insurance and, if the annual premium of such insurance coverage exceeds such maximum amount, ORBCOMM or the surviving corporation will obtain a policy with the greatest coverage available for the maximum amount.

Coordination on Transaction Litigation

ORBCOMM and Parent have agreed to provide each other with prompt notice of any transaction litigation commenced against such party or any of its affiliates. In addition, ORBCOMM, Parent and Merger Sub have agreed to keep each other informed on a current basis of the status of any transaction litigation against such party or any of its affiliates and to give each other the opportunity to participate in the defense or settlement of any such transaction litigation (provided that ORBCOMM shall control such defense, settlement or prosecution), provided that no settlement or disclosure with respect to such litigation may be agreed by one party without the other party’s consent (such consent not to be unreasonably withheld or delayed).

Since the announcement of the Merger, seven putative class action complaints have been filed by and purportedly on behalf of alleged ORBCOMM stockholders: five in the United States District Court for the Southern District of New York, captioned Stein v. ORBCOMM Inc. et al., Case No. 1:21-cv-4289; Viscuso v. ORBCOMM Inc. et al., Case No. 1:21-cv-04476; Epstein v. ORBCOMM Inc. et al., Case No. 1:21-cv-04470; Long v. ORBCOMM Inc. et al., Case No. 1:21-cv-04536; and Gosvener v. ORBCOMM Inc. et al., Case No. 1:21-cv-04579; and two in the United States District Court for the District of New Jersey, captioned Hope v. ORBCOMM Inc. et al., Case No. 2:21-cv-11449 and Glisson v. ORBCOMM Inc. et al., Case No. 2:21-cv-11605 (together, the “Actions”). Similar claims may also be filed in connection with the Merger. The Actions name as defendants the Company and our Board and allege, among other things, violations of Sections 14(a) and 20(a) of the Exchange Act and a breach of the Board’s fiduciary duties, in each case in connection with the preliminary proxy statement filed by the Company on May 10, 2021. The Actions seek, among other things, injunctive relief preventing the Merger, rescissory damages if the Merger is consummated, declaratory judgment and an award of plaintiffs’ attorneys’ fees and expenses. The defendants believe that the allegations asserted against them in the Actions are without merit and intend to defend against the Actions vigorously.

 

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Other Covenants and Agreements

The Merger Agreement also contains additional covenants, including covenants concerning (i) the filing of this proxy statement, (ii) public announcements with respect to the transactions contemplated by the Merger Agreement, (iii) resignation of existing directors, (iv) other actions related to takeover statutes and reporting requirements under Section 16 of the Exchange Act, (v) delisting of the Common Stock from the Nasdaq Stock Market, LLC and deregistered under the Securities Exchange Act of 1934, and (vi) Parent causing Merger Sub and the surviving corporation to perform their respective obligations under the Merger Agreement.

Conditions to Completion of the Merger

Each party’s obligation to complete the Merger is subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:

 

•

receipt of the Stockholder Approval;

 

•

receipt of the Required Governmental Approvals;

 

•

no law or order having been enacted, issued, promulgated, enforced or entered by a court of competent jurisdiction or other governmental entity of competent jurisdiction that is in effect and that restrains, enjoins or otherwise prohibits the consummation of the Merger or the other transaction contemplated by the Merger Agreement.

The respective obligations of Parent and Merger Sub to complete the Merger are subject to the satisfaction or waiver by Parent on or before the Effective Time of the following additional conditions:

 

•

the accuracy, except for any de minimis inaccuracies, of the representations and warranties of ORBCOMM with respect to capitalization as of the Closing Date (except to the extent that any such representation and warranty speaks as of any earlier date, in which case such representation and warranty shall be true and correct as of such earlier date);

 

•

the accuracy in all material respects of the representations and warranties of ORBCOMM with respect to due incorporation, obligations to repurchase equity, subsidiary securities, due authorization, recommendation of the ORBCOMM Board to adopt the Merger Agreement, and broker fees, in each case as of the Closing Date (except to the extent that any such representation and warranty speaks as of any earlier date, in which case such representation and warranty shall be true and correct as of such earlier date);

 

•

the accuracy in all respects of the representations and warranties of ORBCOMM with respect to the required stockholder approval to adopt the Merger Agreement and approve the Merger and the other transactions contemplated thereby and the absence of any Company Material Adverse Effect since December 31, 2020 as of the Closing Date;

 

•

the accuracy of the other representations and warranties of ORBCOMM as of the Closing Date (except to the extent such representations and warranties speak as of a specified date, in which case they need only be true and correct as of such specified date) interpreted without giving effect to the words “materially” or “material” or to any qualifications based on such terms or based on the term “Company Material Adverse Effect,” except where the failure of such representations and warranties to be true and correct, in the aggregate, does not constitute a Company Material Adverse Effect;

 

•

the performance by ORBCOMM in all material respects of its agreements and covenants contained in the Merger Agreement required to be performed or complied with by it at or prior to the Effective Time;

 

•

the receipt by Parent of a certificate signed by an executive officer of ORBCOMM, dated as of the Closing Date, to the effect that the conditions set forth in the five preceding bullet points have been satisfied; and

 

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•

the absence of a Company Material Adverse Effect having occurred on or after the date of the Merger Agreement.

The obligation of ORBCOMM to complete the Merger is subject to the satisfaction or waiver by ORBCOMM on or before the Effective Time of the following additional conditions:

 

•

the accuracy of the representations and warranties of Parent and Merger Sub in all respects as of the Closing Date as if made at such date (except to the extent such representations and warranties speak as of a specified date, in which case they need only be true and correct as of such specified date) interpreted without giving effect to the words “materially” or “material” or to any qualifications based on such terms or based on the term “Parent Material Adverse Effect,” except where the failure of such representations and warranties to be true and correct, in the aggregate, does not constitute a Parent Material Adverse Effect

 

•

the performance by each of Parent and Merger Sub in all material respects of the agreements and covenants required to be performed or complied with under the Merger Agreement at or prior to the Effective Time; and

 

•

the receipt by ORBCOMM of a certificate signed by an executive officer of Parent, dated as of the Closing Date, to the effect that the conditions set forth in the conditions set forth in the two preceding bullet points have been satisfied.

Termination

The Merger Agreement may be terminated and the Merger may be abandoned in the following circumstances:

 

•

at any time prior to the Effective Time by mutual written consent of ORBCOMM and Parent;

 

•

at any time prior to the Effective Time by either ORBCOMM or Parent:

 

•

if the Merger has not been consummated on or before the Termination Date, as may be extended pursuant to the Merger Agreement; provided that the foregoing termination right will not be available to a party if the failure of the Merger to have been consummated on or before the Termination Date was primarily caused by the failure of such Party to perform any of its obligations under the Merger Agreement;

 

•

if the ORBCOMM stockholders’ meeting has been held and completed and Stockholder Approval has not been obtained at such ORBCOMM stockholders’ meeting (or any adjournment or postponement thereof) at which a vote on the Merger Agreement is taken; or

 

•

if any order, judgment, writ, stipulation, settlement, award, injunction, decree, arbitration award or finding of any governmental entity of competent jurisdiction permanently restraining, enjoining or otherwise prohibiting consummation of the Merger shall become final and non-appealable.

 

•

by ORBCOMM:

 

•

at any time prior to the time the Stockholder Approval is obtained, in order to concurrently enter into an acquisition agreement providing for a Superior Proposal in accordance with the terms and conditions of the Merger Agreement, provided that as a condition to, such termination, ORBCOMM will pay to Parent the ORBCOMM termination fee described below;

 

•

at any time prior to the Effective Time, if Parent or Merger Sub breaches any representation, warranty, covenant or agreement in the Merger Agreement, which breach (i) would give rise to the failure of a condition to the obligation of ORBCOMM to complete the Merger relating to Parent or Merger Sub’s representations, warranties, covenants and agreements in the Merger Agreement and (ii) is either not capable of being cured by Parent or Merger Sub prior to the Termination Date or, if capable of being cured, shall not have been cured before the earlier of 30 business days or

 

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the Termination Date; provided, that neither Parent nor Merger Sub is then in breach of any representation, warranty, covenant or agreement of the Merger Agreement such that any condition to the obligations of ORBCOMM would not then be satisfied if the Closing Date were the date of such termination; or

 

•

at any time prior to the Effective Time, if (i) the marketing period has ended and all of the conditions to the obligations of Parent and Merger Sub to complete the Merger have been, and continue to be, satisfied or waived (other than those conditions that by their nature are to be satisfied at the closing, each of which shall be capable of being satisfied if the Closing Date were the date of such termination), (ii) Parent and Merger Sub do not consummate the Merger on or prior to the date the closing is required to occur pursuant to the Merger Agreement, (iii) ORBCOMM shall have irrevocably confirmed in writing to Parent that it is ready, willing and able to complete the Closing on the date of such confirmation and throughout the three business day period following delivery of such confirmation and (iv) Parent and Merger Sub fail to effect the closing within three business days following delivery of such confirmation.

 

•

by Parent:

 

•

at any time prior to the time the Stockholder Approval is obtained, if (i) there has occurred a Change of Recommendation; or (ii) ORBCOMM or any of its subsidiaries entered into an acquisition agreement with respect to an Acquisition Proposal;

 

•

ORBCOMM has materially breached its obligations relating to the go shop period and no shop period non-solicitation obligations; or

 

•

at any time prior to the Effective Time, if ORBCOMM breaches any of its representation, warranty, covenant or agreement in the Merger Agreement, which breach (i) would give rise to the failure of a condition to the obligation of Parent or Merger Sub to complete the Merger relating to ORBCOMM’s representations, warranties, covenants and agreements in the Merger Agreement, and (ii) is either not capable of being cured by Parent or Merger Sub prior to the Termination Date or, if capable of being cured, shall not have been cured before the earlier of 30 business days or the Termination Date; provided, that neither Parent nor Merger Sub is then in breach of any representation, warranty, covenant or agreement of the Merger Agreement such that any condition to the obligations of ORBCOMM would not then be satisfied if the Closing Date were the date of such termination.

Company Termination Fee

ORBCOMM will pay Parent a termination fee in an amount equal to $32,900,000.00 if:

 

•

all of the following conditions are satisfied:

 

•

the Merger Agreement is terminated (i) by either party because the Merger has not been consummated on or before the Termination Date, (ii) by either party because the ORBCOMM stockholders’ meeting has been held and completed and Stockholder Approval has not been obtained at such ORBCOMM stockholders’ meeting (or any adjournment or postponement thereof) at which a vote on the Merger Agreement is taken, (iii) by Parent because ORBCOMM materially breached its obligations relating to the go shop period and no shop period non-solicitation obligations, or (iv) by Parent because ORBCOMM breached any of its representations, warranties, covenants or agreements in the Merger Agreement, which breach (i) would give rise to the failure of a condition to the obligation of Parent or Merger Sub to complete the Merger relating to ORBCOMM’s representations, warranties, covenants and agreements in the Merger Agreement, and (ii) is either not capable of being cured by Parent or Merger Sub prior to the Termination Date or, if capable of being cured, shall not have been cured before the earlier of 30 business days or the Termination Date;

 

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•

any person shall have proposed, announced or made a bona fide Acquisition Proposal after the date of the Merger Agreement and prior to the termination, ORBCOMM stockholders meeting, breach giving rise to the right of termination, as applicable (and in the case of subclause (ii) of the immediately preceding bullet point, such Acquisition Proposal shall not have been withdrawn at least five business days prior to the ORBCOMM stockholders meeting); and

 

•

within 12 months of such termination ORBCOMM shall have consummated an Acquisition Proposal or entered into a definitive agreement for, and thereafter consummated (whether or not such consummation occurs within such 12 month period), any Acquisition Proposal; provided, that for purposes of this bullet point, the references to “20%” and “80%” in the definition of “Acquisition Proposal” will be deemed to be references to “50%”;

 

•

ORBCOMM terminates the Merger Agreement at any time prior to the time the Stockholder Approval is obtained in order to enter into an acquisition agreement with a non-Excluded Party providing for a Superior Proposal in accordance with, and subject to compliance with the terms and conditions of ORBCOMM’s go-shop, no-shop, and non-solicitation obligations.

 

•

Parent terminates the Merger Agreement at any time prior to the time the Stockholder Approval is obtained, because (i) there has occurred a Change of Recommendation; or (ii) ORBCOMM or any of its subsidiaries entered into an acquisition agreement with respect to an Acquisition Proposal; or

 

•

ORBCOMM terminates the Merger Agreement (i) because the Merger has not been consummated on or before the Termination Date, (ii) because the ORBCOMM stockholders’ meeting has been held and completed and Stockholder Approval has not been obtained at such ORBCOMM stockholders’ meeting (or any adjournment or postponement thereof) at which a vote on the Merger Agreement is taken or (iii) because any order, judgment, writ, stipulation, settlement, award, injunction, decree, arbitration award or finding of any governmental entity of competent jurisdiction permanently restraining, enjoining or otherwise prohibiting consummation of the Merger shall become final and non-appealable, in each case at any time that Parent was permitted to terminate the Merger Agreement because prior to the time the Stockholder Approval being obtained, (x) there has occurred a Change of Recommendation; or (y) ORBCOMM or any of its subsidiaries entered into an acquisition agreement with respect to an Acquisition Proposal.

However, ORBCOMM is subject to a lower termination fee in an amount equal to $16,500,000.00 if it terminates the Merger Agreement at any time prior to the time the Stockholder Approval is obtained, in order to concurrently enter into an acquisition agreement with an Excluded Party providing for a Superior Proposal in accordance with, and subject to compliance with the terms and conditions of ORBCOMM’s go-shop, no-shop, and non-solicitation obligations.

In no event will ORBCOMM be required to pay a termination fee on more than one occasion.

Parent Termination Fee

Parent will pay ORBCOMM a termination fee in an amount equal to $51,800,000.00 if ORBCOMM terminates the Merger Agreement because (i) the marketing period has ended and all of the conditions to the obligations of Parent and Merger Sub to complete the Merger have been, and continue to be, satisfied or waived (other than those conditions that by their nature are to be satisfied at the closing, each of which shall be capable of being satisfied if the Closing Date were the date of such termination), (ii) Parent and Merger Sub do not consummate the Merger on or prior to the date the closing is required to occur pursuant to the Merger Agreement, (iii) ORBCOMM has irrevocably confirmed in writing to Parent that it is ready, willing and able to complete the Closing on the date of such confirmation and throughout the three business day period following delivery of such confirmation and (iv) Parent and Merger Sub fail to effect the closing within three business days following delivery of such confirmation.

In no event will Parent be required to pay Parent’s termination fee on more than one occasion.

 

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Limitation on Remedies

In the event that the Merger Agreement is terminated in accordance with the provisions described in the section of this proxy statement entitled “The Merger Agreement — Termination,” the Merger Agreement will become void and have no further force or effect, with no liability to any person on the part of Parent, Merger Sub or ORBCOMM or their respective subsidiaries, except that (i) no such termination shall relieve ORBCOMM, Parent or Merger Sub of any liability to pay ORBCOMM’s termination fee or Parent’s termination fee, as applicable or, subject to the terms of the Merger Agreement, relieve ORBCOMM or Parent or Merger Sub of any liability for any willful breach of the Merger Agreement prior to such termination, and (ii) certain sections of the Merger Agreement, including, among others, sections relating to the confidentiality obligations of ORBCOMM, Parent and Merger Sub and Parent’s obligation to pay and/or reimburse ORBCOMM in respect of certain costs incurred by ORBCOMM, will survive termination. Except for an order of specific performance as permitted by the Merger Agreement, (a) ORBCOMM’s sole and exclusive remedy against Parent, Merger Sub and the Equity Investors, the former, current and future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Debt Commitment Parties, affiliates, members, managers, general or limited partners, stockholders or assignees of Parent, Merger Sub or any Equity Investor, or any future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, debt financing sources, affiliates, members, managers, general or limited partners, stockholders or assignees of any of the foregoing (collectively, the “Parent Group”) in respect of the Merger Agreement, any agreement executed in connection therewith, and the transactions contemplated thereby shall be (x) to terminate the Merger Agreement in accordance with the terms thereof and collect from Parent or pursuant to the Limited Guaranty, if due, Parent’s termination fee (including any interest payable thereon) and, as applicable, the reimbursements described in the section above entitled “The Merger Agreement – Financing Cooperation”, and (y) following the termination of the Merger Agreement by either party, ORBCOMM’s right to seek monetary damages from Parent in the event of Parent’s or Merger Sub’s willful breach of the Merger Agreement prior to the termination thereof (provided that in no event will Parent be subject to monetary damages for willful breach of the Merger Agreement in excess of $51,800,000.00 (the “Damage Cap”)). Additionally, in no event will ORBCOMM be entitled to (1) payment of monetary damages prior to the termination of the Merger Agreement or in amounts in excess of the amount of the Damage Cap, (2) payment of both monetary damages and Parent’s termination fee described in the section above entitled “The Merger Agreement – Parent Termination Fee”, in a combined amount in excess of the Damage Cap, or (3) both (x) payment of any monetary damages and/or Parent’s termination fee described in the section above entitled “The Merger Agreement – Parent Termination Fee” and (y) a grant of specific performance of the Merger Agreement or any other equitable remedy against Parent or Merger Sub that results in the Closing.

Expenses

Except as otherwise provided in the Merger Agreement, all costs and expenses incurred in connection with the Merger Agreement and the transactions contemplated thereby will be paid by the party incurring the expense, except that all filing and similar fees in connection with Required Governmental Approvals shall be borne 50% by Parent and 50% by ORBCOMM. All transfer, excise, documentary, recording, notarial, stamp, sales, value added, and use taxes, and similar taxes, applicable to, or resulting from, the transactions contemplated by the Merger Agreement will be borne and paid by ORBCOMM.

Amendment, Modification and Waiver

Subject to applicable law, the Merger Agreement may be modified or amended by written agreement executed and delivered by each of ORBCOMM, Parent and Merger Sub; provided, that after receipt of Stockholder Approval, if any such amendment requires further approval of the stockholders of ORBCOMM pursuant to applicable law, such amendment must be approved by the stockholders of ORBCOMM to be effective. In addition, certain provisions of the Merger Agreement may not be amended or waived in a manner that is materially adverse to the Debt Commitment Parties without the prior written consent of those Debt Commitment Parties adversely affected.

 

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At any time prior to the Effective Time, ORBCOMM or Parent may (i) waive or extend the time for the performance of any of the obligations or other acts of Parent or Merger Sub, in the case of ORBCOMM, or ORBCOMM, in the case of Parent, or (ii) waive any inaccuracies in the representations and warranties contained in the Merger Agreement or in any document delivered pursuant thereto on the part of Parent or Merger Sub, in the case of ORBCOMM, or ORBCOMM, in the case of Parent. Any agreement on the part of a party to the Merger Agreement to any such extension or waiver shall be valid only if in a writing signed on behalf of such party to the Merger Agreement.

Jurisdiction; Specific Enforcement

Under the Merger Agreement, each of the parties has agreed that it will bring any claims, controversies, disputes or proceedings in connection with transactions contemplated by the Merger Agreement exclusively in the Court of Chancery of the State of Delaware, or if that court lacks or declines to accept jurisdiction, another federal or state court located in the State of Delaware. However, each of the parties has agreed that it will not bring or support any action or claim against any Debt Commitment Party in connection with the Merger Agreement, the debt financing or the transactions contemplated by the Merger Agreement or the debt financing in any forum other than any state or federal court sitting in the Borough of Manhattan in the City of New York.

ORBCOMM, Parent and Merger Sub have agreed that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties do not perform or otherwise breach or threaten to breach the provisions of the Merger Agreement (including failing to take such actions as are required of them in order to consummate the Merger and effect the closing) in accordance with its specified terms. ORBCOMM, Parent and Merger Sub have acknowledged and agreed that: (i) they are entitled, in addition to any other remedy to which they are entitled at law or in equity, to an injunction, specific performance and other equitable relief to prevent breaches of the Merger Agreement and to enforce specifically the terms and provisions of the Merger Agreement; (ii) neither ORBCOMM’s termination fee nor Parent’s termination fee will be constructed to diminish or impair any party’s right to specific enforcement; and (iii) the right of specific enforcement is an integral part of transactions contemplated under the Merger Agreement and without that right neither ORBCOMM nor Parent would have entered into the Merger Agreement. Any party seeking an order or injunction to prevent and to enforce specifically the terms and provisions of the Merger Agreement will not be required to provide any bond or other security in connection with any such order or injunction.

Notwithstanding anything to the contrary in the Merger Agreement, ORBCOMM, Parent and Merger Sub have acknowledged and agreed that ORBCOMM will be entitled to specific performance of Parent’s obligation to cause the equity financing to be funded to fund the Merger Consideration and Parent’s and Merger Sub’s obligation to close only if:

 

•

all conditions to the obligation of Parent and Merger Sub to complete the Merger have been and continue to be satisfied or waived (other than those conditions that by their terms are to be satisfied at the closing, but subject to such conditions being able to be satisfied at the closing);

 

•

Parent and Merger Sub fail to complete the closing of the Merger by the date the closing is required to have occurred pursuant to the Merger Agreement;

 

•

the debt financing has been funded or will be funded in accordance with the terms and conditions if the equity financing is funded at the closing; and

 

•

ORBCOMM has irrevocably confirmed in a written notice to Parent that the closing of the Merger will occur if the equity financing and debt financing are funded and specific performance is granted pursuant to the Merger Agreement.

Under no circumstances will ORBCOMM be entitled to receive both a grant of specific performance of Parent’s obligation to cause the equity financing to be funded and to consummate the closing or other equitable relief, on the one hand, and payment of Parent’s Termination Fee, and interest and expenses and certain reimbursement obligations of Parent, if any are due under the Merger Agreement, on the other hand.

 

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ADVISORY VOTE ON NAMED EXECUTIVE OFFICER MERGER-RELATED COMPENSATION

As required by Section 14A of the Exchange Act and the applicable SEC rules issued thereunder, ORBCOMM is providing its shareholders with a separate advisory (non-binding) vote to approve the Compensation Proposal, as described in the table in the section of this proxy statement entitled “The Merger — Interests of the Company’s Directors and Executive Officers in the Merger — Quantification of Potential Payments and Benefits to the Company’s Named Executive Officers in Connection with the Merger,” including the footnotes to the table and related narrative discussion.

The ORBCOMM Board recommends that the shareholders of ORBCOMM approve the following resolution:

“RESOLVED, that the compensation that may be paid or become payable to ORBCOMM’s named executive officers in connection with the Merger, and the agreements or understandings pursuant to which such compensation may be paid or become payable, in each case, as disclosed pursuant to Item 402(t) of Regulation S-K in the table in the section of this proxy statement entitled “The Merger — Interests of the Company’s Directors and Executive Officers in the Merger — Quantification of Potential Payments and Benefits to the Company’s Named Executive Officers in Connection with the Merger,” including the footnotes to the table and the related narrative discussion, is hereby APPROVED.”

The vote on the Compensation Proposal is a vote separate and apart from the vote on the Merger Proposal. Accordingly, you may vote to adopt the Merger Agreement and vote not to approve the Compensation Proposal and vice versa. Because the vote on the Compensation Proposal is advisory only, it will not be binding on either ORBCOMM or Parent. Accordingly, if the Merger Proposal is approved and the Merger is completed, the compensation may be payable, subject only to the conditions applicable thereto under the applicable compensation agreements and arrangements, regardless of the outcome of the non-binding, advisory vote of ORBCOMM shareholders.

The above resolution approving the Merger-related compensation of ORBCOMM’s named executive officers on an advisory (non-binding) basis requires the affirmative vote of a majority of the voting power of the Company Stock present by virtual attendance or represented by proxy at the special meeting and entitled to vote thereon.

The ORBCOMM Board recommends that the shareholders of ORBCOMM vote “FOR” the Compensation Proposal.

 

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VOTE ON ADJOURNMENT

The Company’s shareholders are being asked to approve the Adjournment Proposal.

If the Adjournment Proposal is approved, the special meeting could be adjourned by the ORBCOMM Board to any date (subject to certain limitations in the Merger Agreement). ORBCOMM may not postpone or adjourn the special meeting without Parent’s prior written consent. Notwithstanding the foregoing, the Company may postpone or adjourn the special meeting (i) with the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed), (ii) for the absence of a quorum, (iii) to allow reasonable additional time to solicit additional proxies if the Company has not received proxies representing a sufficient number of shares of Common Stock to adopt the Merger Agreement, whether or not a quorum is present, (iv) if required by applicable law, or (v) to allow reasonable additional time for the filing and dissemination of any supplemental or amended disclosure; provided that in no event shall the special meeting be postponed or adjourned beyond a date that is more than thirty (30) days after the date on which the special meeting was originally scheduled without the prior written consent of Parent. If the special meeting is adjourned for the purpose of soliciting additional proxies, shareholders who have already submitted their proxies will be able to revoke them at any time before their use. If you sign and return a proxy and do not indicate how you wish to vote on any proposal, or if you sign and return a proxy and you indicate that you wish to vote in favor of the Merger Proposal but do not indicate a choice on the Adjournment Proposal, your shares of Company Stock will be voted in favor of the Adjournment Proposal.

The Company does not anticipate calling a vote on this proposal if the Merger Proposal is approved by the requisite number of shares of Company Stock at the special meeting.

The vote on the Adjournment Proposal is a vote separate and apart from the vote on Merger Proposal. Accordingly, you may vote to approve the Merger Proposal and vote not to approve the Adjournment Proposal and vice versa.

Approval of the Adjournment Proposal requires the affirmative vote of the holders of a majority of the voting power of our Company Stock present by virtual attendance or represented by proxy at the special meeting and entitled to vote thereon.

The ORBCOMM Board recommends that the shareholders of ORBCOMM vote “FOR” the Adjournment Proposal, if a vote on the Adjournment Proposal is called.

 

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MARKET PRICE OF THE COMMON STOCK

Shares of Common Stock are traded on the NASDAQ under the symbol “ORBC.” On May 25, 2021, there were approximately 79,543,070 holders of record of Common Stock and 43,102 holders of record of Preferred Stock. Certain shares of Company Stock are held in “street” name and accordingly, the number of beneficial owners of such shares is not known or included in the foregoing number.

The following table sets forth for the periods indicated the high and low sales prices per share for Common Stock on the NASDAQ.

 

		Market Price
		Low				High
Fiscal Year Ended December 31, 2018		$	7.62			$	11.95
Fiscal Year Ended December 31, 2019
First Quarter		$	6.50			$	9.35
Second Quarter		$	6.19			$	7.91
Third Quarter		$	4.38			$	8.44
Fourth Quarter		$	4.87			$	3.58
Fiscal Year Ended December 31, 2020
First Quarter		$	1.24			$	4.31
Second Quarter		$	1.81			$	4.62
Third Quarter		$	3.32			$	4.66
Fourth Quarter		$	3.38			$	8.00
Fiscal Year Ended December 31, 2021
First Quarter		$	6.32			$	9.25
Second Quarter through May 25, 2021		$	7.52			$	11.55

The closing sale price of shares of Common Stock on April 7, 2021, the last trading day prior to the announcement of the Merger Agreement, was $7.57 per share. On May 25, 2021, the most recent practicable date before the filing of this proxy statement, the closing price for shares of Common Stock was $11.18 per share. You are encouraged to obtain current market quotations for shares of Common Stock in connection with voting your shares of Company Stock.

 

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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The following table sets forth certain information, as of May 25, 2021, regarding the beneficial ownership of shares of Common Stock with respect to:

 

•

each person that is a beneficial owner of more than 5% of the outstanding Common Stock;

 

•

each director;

 

•

each named executive officer; and

 

•

all directors and executive officers as a group.

The amounts and percentages of Common Stock beneficially owned are reported on the basis of regulations of the SEC governing the determination of beneficial ownership of securities. Under the rules of the SEC, a person is deemed to be a “beneficial owner” of a security if that person has or shares voting power, which includes the power to vote or direct the voting of such security, or investment power, which includes the power to dispose of or to direct the disposition of such security. A person is also deemed a beneficial owner of any securities of which that person has a right to acquire beneficial ownership within sixty (60) days. Securities that can be so acquired are deemed to be outstanding for purposes of computing such person’s ownership percentage, but not for purposes of computing any other person’s percentage. Under these rules, more than one person may be deemed a beneficial owner of the same securities and a person may be deemed to be a beneficial owner of securities as to which such person has no economic interest. Except as otherwise indicated in these footnotes, each of the beneficial owners has, to our knowledge, sole voting and investment power with respect to the indicated shares of common stock. In addition, except as otherwise indicated in these footnotes, the address of each of the directors and executive officers of the Company is c/o ORBCOMM Inc., 395 W. Passaic Street, Rochelle Park, New Jersey 07662. The below beneficial ownership information includes shares of Common Stock issuable upon the exercise of options within sixty (60) days of May 25, 2021.

 

Name of Beneficial Owner		Shares of Common Stock Owned(1)				Percentage of Total Common Stock Held
Greater than 5% Shareholders
Adage Capital Partners, L.P.(2)			7,620,187				9.64	%
BlackRock, Inc.(3)			5,375,809				6.80	%
Dimensional Fund Advisors LP(4)			4,162,429				5.26	%
The Vanguard Group Inc.(5)			4,108,967				5.20	%
Named Executive Officers and Directors
Marc Eisenberg(6)			1,078,003				1.36	%
Constantine Milcos(7)			116,208				*
John J. Stolte, Jr.(8)			302,672				*
Christian G. Le Brun(9)			270,354				*
Craig E. Malone(10)			163,303				*
Jerome B. Eisenberg(11)			925,924				1.17	%
Marco Fuchs(12)			2,253,552				2.85	%
Denise Gibson			38,515				*
Karen Gould			42,534				*
Timothy Kelleher			151,348				*
John Major(13)			177,870				*
All executive officers and directors as a group (11 persons)			5,534,489				6.93	%

 

*	Less than 1%.

(1)	Unless otherwise indicated, the amounts shown as being beneficially owned by each stockholder or group listed above represent shares over which that stockholder or group holds sole investment power.

 

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(2)

Based on a Schedule 13G/A filed with the SEC on February 11, 2021 by Adage Capital Partners, L.P. (“ACP”), ACP, as a direct owner of common stock, Adage Capital Partners GP, L.L.C. (“ACPGP”), as general partner of ACP, Adage Capital Advisors, L.L.C. (“ACA”), as managing member of ACPGP, and Robert Atchinson and Phillip Gross, each as managing members of ACA, managing members of ACPGP, and general partners of ACP, may each be deemed the beneficial owner of shares held by ACP. ACP reported having shared voting power over 7,620,187 shares and shared dispositive power over 7,620,187 shares. The principal business address of each reporting persons is 200 Clarendon Street, 52nd floor, Boston, MA 02116.

(3)

Based on a Schedule 13G/A filed with the SEC on January 29, 2021 by BlackRock, Inc., BlackRock, Inc. reported having sole voting power over 5,315,987 shares and sole dispositive power over 5,375,809 shares. The principal business address of BlackRock, Inc. is 55 East 52nd Street, New York, NY 10055.

(4)

Based on a Schedule 13G/A filed with the SEC on February 12, 2021 by Dimensional Fund Advisors LP (“Dimensional”), Dimensional, in its capacity as investment adviser to four registered investment companies and investment manager or sub-adviser to certain other commingled funds, group trusts and separate accounts (collectively with the registered investment companies, the “Funds”) and through certain of its subsidiaries, in their capacities as investment adviser and/or sub-adviser to certain Funds, may possess voting and/or investment power over the ORBCOMM shares that are owned by the Funds and may be deemed the beneficial owner of shares held by the Funds. Dimensional reported having sole voting power over 3,948,578 shares and sole dispositive power over 4,162,429 shares. However, all the shares are owned by the Funds and Dimensional and its affiliates disclaim beneficial ownership of the shares. Dimensional’s address is Building One, 6300 Bee Cave Road, Austin, TX 78746.

(5)

Based on the Schedule 13G/A filed with the SEC on February 10, 2021 by The Vanguard Group Inc., The Vanguard Group Inc. reported having sole voting power over no shares, sole dispositive power over 4,007,147 shares, shared voting power over 68,514 shares and shared dispositive power over 101,820 shares. The Vanguard Group Inc.’s address is 100 Vanguard Blvd., Malvern, PA 19355.

(6)	Includes 698,316 shares of common stock held by Marc Eisenberg. Also includes 379,687 shares of common stock underlying Company SAR Awards that are currently exercisable.

(7)	Includes 104,008 shares of common stock held by Constantine Milcos. Also includes 12,200 shares of common stock underlying Company SAR Awards that are currently exercisable.

(8)	Includes 149,327 shares of common stock held by John J. Stolte, Jr. Also includes 153,345 shares of common stock underlying Company SAR Awards that are currently exercisable.

(9)	Includes 117,948 shares of common stock held by Christian G. Le Brun. Also includes 152,406 shares of common stock underlying Company SAR Awards that are currently exercisable.

(10)	Includes 91,403 shares of common stock held by Craig E. Malone. Also includes 71,900 shares of common stock underlying Company SAR Awards that are currently exercisable.

(11)	Includes 880,165 shares of common stock held by Jerome B. Eisenberg and 15,759 shares of common stock held by Cynthia Eisenberg, Mr. Eisenberg’s wife. Also includes 30,000 shares of common stock underlying Company SAR Awards that are currently exercisable.

(12)

Includes 24,449 shares of common stock held by Marco Fuchs, 2,168,779 shares of common stock held by OHB SE, and 60,324 shares of common stock held by ORBCOMM Deutschland A.G. Mr. Fuchs is Chief Executive Officer of OHB SE which owns ORBCOMM Deutschland A.G. Manfred Fuchs, Marco Fuchs and Christa Fuchs hold voting and investment power with regard to the shares held by OHB SE and ORBCOMM Deutschland A.G. OHB SE’s address is Universitaetsalle 27-29, Bremen, D-28539, Germany.

(13)	Includes 157,870 shares of common stock held by John Major and 20,000 shares of common stock held by a trust of which Mr. Major is a trustee.

 

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APPRAISAL RIGHTS

Under the DGCL, you have the right to dissent from the Merger and to receive payment in cash for the fair value of your shares of Company Stock as determined by the Delaware Court of Chancery, together with interest, if any, as determined by the Court, in lieu of the consideration you would otherwise be entitled to pursuant to the Merger Agreement. These rights are known as appraisal rights. Shareholders electing to exercise appraisal rights must comply with the provisions of Section 262 of the DGCL in order to perfect their rights. Strict compliance with the statutory procedures is required to perfect appraisal rights under Delaware law.

The following is intended as a brief summary of the material provisions of the Delaware statutory procedures required to be followed by a stockholder in order to dissent from the Merger and perfect appraisal rights. This summary, however, is not a complete statement of all applicable requirements and is qualified in its entirety by reference to Section 262 of the DGCL, the full text of which is attached as Annex C to this proxy statement and is incorporated by reference herein in its entirety. Failure to precisely follow any of the statutory procedures set forth in Section 262 of the DGCL may result in the loss or waiver of your appraisal rights. All references in this summary to a “stockholder” are to the record holder of shares of Company Stock unless otherwise indicated.

Beneficial owners of shares of Company Stock who do not also hold such shares of record may have the registered owner, such as a broker, bank or other nominee, submit the required demand in respect of those shares. If shares of Company Stock are owned of record in a fiduciary capacity, such as by a trustee, guardian or custodian, execution of a demand for appraisal should be made in that capacity, and if the shares of Company Stock are owned of record by more than one person, as in a joint tenancy or tenancy in common, the demand should be executed by or for all joint owners. An authorized agent, including an authorized agent for two or more joint owners, may execute the demand for appraisal on behalf of a stockholder of record; however, the agent must identify the record owner or owners and expressly disclose the fact that, in executing the demand, he or she is acting as agent for the record owner. In the event a record owner, such as a broker, who holds shares of Company Stock as a nominee for others, exercises his or her right of appraisal with respect to the shares of Company Stock held for one or more beneficial owners, while not exercising this right for other beneficial owners, we recommend that the written demand state the number of shares of Company Stock as to which appraisal is sought. Where no number of shares is expressly mentioned, we will presume that the demand covers all shares held in the name of the record owner. If you hold your shares of Company Stock in a brokerage account or in other nominee form and you wish to exercise appraisal rights, you should consult with your broker or the other nominee to determine the appropriate procedures for the making of a demand for appraisal by the nominee.

Section 262 of the DGCL requires that shareholders for whom appraisal rights are available be notified not less than twenty (20) days before the shareholders meeting to vote on the Merger in connection with which appraisal rights will be available. A copy of Section 262 of the DGCL must be included with such notice. This proxy statement constitutes our notice to the Company’s shareholders of the availability of appraisal rights in connection with the Merger in compliance with the requirements of Section 262 of the DGCL, and a copy of the full text of Section 262 of the DGCL is attached hereto as Annex C. If you wish to consider exercising your appraisal rights, you should carefully review the text of Section 262 of the DGCL contained in Annex C to this proxy statement since failure to timely and properly comply with the requirements of Section 262 of the DGCL will result in the loss of your appraisal rights under the DGCL.

If you elect to demand appraisal of your shares, you must satisfy each of the following conditions:

 

•

You must deliver to us a written demand for appraisal of your shares before the vote with respect to the Merger is taken. This written demand for appraisal must be in addition to and separate from any proxy or vote abstaining from or voting against the adoption and approval of the Merger Agreement and the Merger. Voting against or failing to vote for the Merger Proposal by itself does not constitute a demand for appraisal within the meaning of Section 262 of the DGCL. The demand must reasonably inform us

 

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of the identity of the stockholder and the intention of the stockholder to demand appraisal of his, her or its shares. A stockholder’s failure to make a written demand before the vote with respect to the Merger is taken will constitute a waiver of appraisal rights.

 

•

You must not vote in favor of, or consent in writing to, the Merger Proposal. A vote in favor of the Merger Proposal, by proxy submitted by mail, over the Internet, by telephone or virtually, will constitute a waiver of your appraisal rights in respect of the shares so voted and will nullify any previously filed written demands for appraisal. A proxy which does not contain voting instructions will, unless revoked, be voted in favor of the Merger Proposal. Therefore, a stockholder who votes by proxy and who wishes to exercise appraisal rights must vote against the Merger Proposal or abstain from voting on the Merger Proposal.

 

•

You must continue to hold your shares of Company Stock from the date of making the demand through the effective date of the Merger. Therefore, a stockholder who is the record holder of shares of Company Stock on the date the written demand for appraisal is made but who thereafter transfers the shares before the effective date of the Merger will lose any right to appraisal with respect to such shares.

 

•

You must otherwise comply with the procedures set forth in Section 262.

If you fail to comply with any of these conditions and the Merger is completed, you will be entitled to receive the Merger Consideration (without interest and subject to any required tax withholding), but you will have no appraisal rights with respect to your shares of Company Stock.

All demands for appraisal pursuant to Section 262 of the DGCL should be addressed to the Company, in care of the Secretary, at ORBCOMM Inc., 395 W. Passaic Street, Rochelle Park, New Jersey 07662, and must be delivered before the vote on the Merger Agreement is taken at the special meeting and should be executed by, or on behalf of, the record holder of the shares of Company Stock.

Within ten (10) days after the effective date of the Merger, ORBCOMM, as the surviving corporation, must give written notice that the Merger has become effective to each stockholder who has properly filed a written demand for appraisal and who did not vote in favor of the Merger Agreement and the Merger. At any time within sixty (60) days after the effective date of the Merger, any stockholder who has demanded an appraisal, and who has not commenced an appraisal proceeding or joined that proceeding as a named party, has the right to withdraw such stockholder’s demand for appraisal and to accept the Merger Consideration (without interest and subject to any required tax withholding) specified by the Merger Agreement for his or her shares of Company Stock; after this period, the stockholder may withdraw such demand for appraisal only with the consent of ORBCOMM, as the surviving corporation. Within 120 days after the effective date of the Merger, any stockholder who has complied with Section 262 of the DGCL will, upon written request to ORBCOMM, as the surviving corporation, be entitled to receive a written statement setting forth the aggregate number of shares not voted in favor of the Merger Agreement and the Merger and with respect to which demands for appraisal rights have been received and the aggregate number of holders of such shares. A person who is the beneficial owner of shares of Company Stock held in a voting trust or by a nominee on behalf of such person may, in such person’s own name, request from the corporation the statement described in the previous sentence. Such written statement will be mailed to the requesting stockholder within ten (10) days after such written request is received by the surviving corporation or within ten (10) days after expiration of the period for delivery of demands for appraisal, whichever is later. Within 120 days after the Effective Time, but not thereafter, either ORBCOMM, as the surviving corporation, or any stockholder who has complied with the requirements of Section 262 of the DGCL and who is otherwise entitled to appraisal rights may file a petition in the Delaware Court of Chancery demanding a determination of the fair value of the shares held by all shareholders entitled to appraisal. A person who is the beneficial owner of shares of Company Stock held in a voting trust or by a nominee on behalf of such person may, in such person’s own name, file the petition described in the previous sentence. Upon the filing of the petition by a stockholder, service of a copy of such petition shall be made upon ORBCOMM, as the surviving corporation. If no such

 

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petition is filed within that 120-day period, appraisal rights will be lost for all holders of shares who had previously demanded appraisal of their shares. ORBCOMM, as the surviving corporation, has no obligation to file such a petition in the event there are dissenting shareholders. Accordingly, the failure of a stockholder to file such a petition within the period specified could nullify the stockholder’s previously written demand for appraisal. There is no present intent on the part of the Company to file an appraisal petition, and shareholders seeking to exercise appraisal rights should not assume that the Company will file such a petition or that the Company will initiate any negotiations with respect to the fair value of such shares. Accordingly, shareholders who desire to have their shares appraised should initiate any petitions necessary for the perfection of their appraisal rights within the time periods and in the manner prescribed in Section 262 of the DGCL.

If a petition for appraisal is duly filed by a stockholder and a copy of the petition is delivered to ORBCOMM, as the surviving corporation, the Company will then be obligated, within twenty (20) days after receiving service of a copy of the petition, to file in the office of the Register in Chancery in which the petition was filed a duly verified, a list containing the names and addresses of all shareholders who have demanded payment for their shares and with whom agreements as to the value of their shares have not been reached by the surviving corporation. The Register in Chancery, if so ordered by the Delaware Court of Chancery, must give notice of the time and place fixed for the hearing of such petition by registered or certified mail to the surviving corporation and to the shareholders shown on the list at the addresses therein stated. Such notice must also be given by one or more publications at least one week before the day of the hearing, in a newspaper of general circulation published in the City of Wilmington, Delaware or such publication as the Delaware Court of Chancery deems advisable. The forms of the notices by mail and by publication must be approved by the Delaware Court of Chancery, and the costs thereof will be borne by the surviving corporation. At the hearing on such petition, the Delaware Court of Chancery will determine the shareholders who have complied with Section 262 of the DGCL and who have become entitled to appraisal rights. The Delaware Court of Chancery may require the shareholders who have demanded appraisal for their shares and who hold stock represented by certificates to submit their stock certificates to the Register in Chancery for notation thereon of the pendency of the appraisal proceedings; if any stockholder fails to comply with that direction, the Delaware Court of Chancery may dismiss the proceedings as to that stockholder. If immediately before the Merger the shares of the class or series of stock as to which appraisal rights are available were listed on a national securities exchange, the Delaware Court of Chancery will dismiss the proceedings as to all holders of such shares who are otherwise entitled to appraisal rights unless (i) the total number of shares entitled to appraisal exceeds 1% of the outstanding shares of the class or series eligible for appraisal, (ii) the value of the consideration provided in the Merger for such total number of shares exceeds $1 million, or (iii) the Merger was approved pursuant to Sections 253 or 267 of the DGCL.

After determination of the shareholders entitled to appraisal of their shares of Company Stock, the Delaware Court of Chancery will appraise the shares, determining their fair value exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest, if any. Unless the Delaware Court of Chancery in its discretion determines otherwise for good cause shown, and except as otherwise provided in Section 262, interest from the effective date of the Merger through the date of payment of the judgment will be compounded quarterly and will accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the effective date of the Merger and the date of payment of the judgment. At any time before the entry of judgment in the proceedings, ORBCOMM, as the surviving corporation, may pay to each stockholder entitled to appraisal an amount in cash, in which case interest shall accrue thereafter only upon the sum of (i) the difference, if any, between the amount paid and the fair value of the shares as determined by the Delaware Court of Chancery, and (ii) interest theretofore accrued, unless paid at that time. Upon application by ORBCOMM, as the surviving corporation, or by any stockholder entitled to participate in the appraisal proceeding, the Delaware Court of Chancery may, in its discretion, proceed to trial upon the appraisal before the final determination of the shareholders entitled to an appraisal. Any stockholder whose name appears on the list filed by ORBCOMM, as the surviving corporation, and who has submitted such stockholder’s certificates of stock to the Register in Chancery, if such is required, may participate fully in all proceedings until it is finally determined that such stockholder is not entitled to appraisal rights under Section 262 of the DGCL. When the fair value is determined, the Delaware Court of Chancery will direct the

 

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payment of such value, with interest thereon, if any, by ORBCOMM, as the surviving corporation, to the shareholders entitled to receive the same, in the case of holders of uncertificated stock forthwith, and in the case of holders of shares represented by certificates upon the surrender to ORBCOMM of the certificates representing such stock.

In determining the fair value of the shares of Company Stock and, if applicable, interest, the Delaware Court of Chancery is required to take into account all relevant factors. In Weinberger v. UOP, Inc., the Delaware Supreme Court discussed the factors that could be considered in determining fair value in an appraisal proceeding, stating that “proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court” should be considered, and that “[f]air price obviously requires consideration of all relevant factors involving the value of a company.”

The Delaware Supreme Court has stated that in making this determination of fair value, the court must consider market value, asset value, dividends, earnings prospects, the nature of the enterprise and any other facts that could be ascertained as of the date of the Merger that throw any light on future prospects of the merged corporation. Section 262 of the DGCL provides that fair value is to be “exclusive of any element of value arising from the accomplishment or expectation of the Merger.” In Cede & Co. v. Technicolor, Inc., the Delaware Supreme Court stated that such exclusion is a “narrow exclusion [that] does not encompass known elements of value,” but rather applies only to the speculative elements of value arising from such accomplishment or expectation. In Weinberger, the Delaware Supreme Court also stated that “elements of future value, including the nature of the enterprise, which are known or susceptible of proof as of the date of the Merger and not the product of speculation, may be considered.”

You should be aware that the fair value of your shares of Company Stock as determined under Section 262 of the DGCL could be more than, the same as, or less than the value that you are entitled to receive under the terms of the Merger Agreement and that an opinion of an investment banking firm as to the fairness, from a financial point of view, of the consideration payable in a sale transaction, such as the Merger, is not an opinion as to, and does not otherwise address, fair value under Section 262 of the DGCL.

Moreover, we do not anticipate offering more than the per share Merger Consideration to any stockholder exercising appraisal rights and reserve the right to assert, in any appraisal proceeding, that, for purposes of Section 262 of the DGCL, the “fair value” of a share of Company Stock is less than the per share Merger Consideration.

Costs of the appraisal proceeding may be imposed upon ORBCOMM, as the surviving corporation, and the shareholders participating in the appraisal proceeding by the Delaware Court of Chancery as the Court deems equitable in the circumstances. Upon the application of a stockholder, the Delaware Court of Chancery may order all or a portion of the expenses incurred by any stockholder in connection with the appraisal proceeding, including, without limitation, reasonable attorneys’ fees and the fees and expenses of experts, to be charged pro rata against the value of all shares entitled to appraisal. In the absence of an order, each party bears its own expenses. Any stockholder who has duly demanded and perfected appraisal rights in compliance with Section 262 of the DGCL will not, after the Effective Time, be entitled to vote shares subject to that demand for any purpose or to receive payments of dividends or any other distribution with respect to those shares, other than with respect to payment as of a record date before the Effective Time; however, if no petition for appraisal is filed within 120 days after the effective date of the Merger, or if the stockholder delivers a written withdrawal of his or her demand for appraisal and an acceptance of the terms of the Merger within sixty (60) days after the effective date of the Merger or thereafter with the written approval of the Company, then the right of that stockholder to appraisal will cease. No appraisal proceeding in the Delaware Court of Chancery will be dismissed as to any stockholder without the prior approval of the Court, and such approval may be conditioned upon such terms as the Delaware Court of Chancery deems just; provided, however, that any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party will maintain the right to withdraw its demand for appraisal and to accept the Merger Consideration that such holder would have received

 

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(without interest and subject to any required tax withholding) pursuant to the Merger Agreement within sixty (60) days after the effective date of the Merger.

In view of the complexity of Section 262 of the DGCL, shareholders who may wish to dissent from the Merger and pursue appraisal rights should consult their legal advisors.

 

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MULTIPLE STOCKHOLDERS SHARING ONE ADDRESS

In accordance with Rule 14a-3(e)(1) under the Exchange Act, one proxy statement will be delivered to two or more shareholders who share an address, unless the Company has received contrary instructions from one or more of the shareholders. Each shareholder will receive a separate proxy card. The Company will deliver promptly upon written or oral request a separate copy of the proxy statement to a shareholder at a shared address to which a single copy of the proxy statement was delivered. Requests for additional copies of the proxy statement should be directed to the Company, in care of the Secretary, at ORBCOMM Inc., 395 W. Passaic Street, Rochelle Park, New Jersey 07662, or by calling us at 1-800-ORBCOMM (672-2666). In addition, shareholders who share a single address, but receive multiple copies of the proxy statement, may request that in the future they receive a single copy by contacting the Company at the address and phone number set forth in the prior sentence.

 

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SUBMISSION OF STOCKHOLDER PROPOSALS

If the Merger is completed, we will have no public stockholders and there will be no public participation in any future meetings of stockholders of ORBCOMM. However, if the Merger is not completed, stockholders will continue to be entitled to attend and participate in stockholder meetings. If the Merger not completed, ORBCOMM will hold a 2022 annual meeting of its stockholders.

As described in our annual proxy statement for the 2021 Annual Meeting of Shareholders filed on March 15, 2021, to be eligible for inclusion in our proxy statement and the proxy card pursuant to Rule 14a-8 under the Exchange Act, shareholder proposals for the 2022 Annual Meeting of Shareholders must be received on or before November 15, 2021 by the Office of the Secretary at our principal corporate office located at 395 West Passaic Street, Suite 325, Rochelle Park, New Jersey 07662. In order for shareholder proposals made outside of Rule 14a-8 under the Exchange Act to be considered “timely” within the meaning of Rule 14a-4(c) under the Exchange Act, such proposals must be received by the Office of the Secretary at the above address by January 29, 2022. If the proposal is not “timely” within the meaning of Rule 14a-4(c), the proxies solicited by us for the 2022 Annual Meeting of Shareholders may confer discretionary authority to us on such proposal. In addition, our By-Laws require a shareholder desiring to propose any matter for consideration of the shareholders at the 2022 Annual Meeting of Shareholders or to nominate an individual to our board of directors to notify the Office of the Secretary in writing at the address above no earlier than the close of business on December 22, 2021 and no later than the close of business on January 21, 2022. If the number of directors to be elected to the board at the 2022 Annual Meeting of Shareholders is increased and we do not make a public announcement naming all of the nominees for director or specifying the increased size of the board on or before January 11, 2022, a shareholder proposal with respect to nominees for any new position created by such increase will be considered timely if received at the Office of the Secretary not later than the tenth (10th) day following our public announcement of the increase.

 

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WHERE YOU CAN FIND ADDITIONAL INFORMATION

The Company files annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any reports, proxy statements or other information that we file with the SEC at the following location of the SEC:

Public Reference Room

100 F Street, N.E.

Washington, D.C. 20549

Please call the SEC at 1-800-SEC-0330 for further information regarding the public reference room. You may also obtain copies of this information by mail from the Public Reference Section of the SEC at its address above, at prescribed rates. The Company’s public filings are also available to the public from document retrieval services and the Internet website maintained by the SEC at www.sec.gov.

The Company will make available a copy of its public reports, without charge, on the Investors page of its website at https://www.orbcomm.com/ as soon as reasonably practicable after the Company files the reports electronically with the SEC. The information provided on our website is not part of this proxy statement, and is not incorporated by reference herein. In addition, you may obtain a copy of the reports, without charge, by contacting the Company at ORBCOMM Inc., Attn: Secretary, 395 W. Passaic Street, Rochelle Park, New Jersey 07662, or by calling us at 1-800-ORBCOMM (672-2666). In order to ensure timely delivery of the documents before the special meeting, any request should be made promptly to the Company.

The SEC allows us to “incorporate by reference” into this proxy statement documents we file with the SEC. This means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this proxy statement, and later information that we file with the SEC will update and supersede that information. Information in documents that is deemed, in accordance with SEC rules, to be furnished and not filed will not be deemed to be incorporated by reference into this proxy statement. We incorporate by reference the documents listed below and any documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this proxy statement, and before the date of the special meeting (provided that we are not incorporating by reference any information furnished to, but not filed with, the SEC):

 

•

ORBCOMM’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the SEC on February 25, 2021;

 

•

ORBCOMM’s Current Report on Form 8-K, filed with the SEC on February 24, 2021;

 

•

ORBCOMM’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2021, filed with the SEC on April 29, 2021; and

 

•

ORBCOMM’s Current Report on Form 8-K, filed with the SEC on April 29, 2021.

THIS PROXY STATEMENT DOES NOT CONSTITUTE THE SOLICITATION OF A PROXY IN ANY JURISDICTION TO OR FROM ANY PERSON TO WHOM OR FROM WHOM IT IS UNLAWFUL TO MAKE SUCH PROXY SOLICITATION IN THAT JURISDICTION. YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE INTO THIS PROXY STATEMENT TO VOTE YOUR SHARES AT THE SPECIAL MEETING. NO PERSONS HAVE BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS ABOUT THE MERGER OR THE SPECIAL MEETING OTHER THAN THOSE CONTAINED IN THIS PROXY STATEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY US OR ANY OTHER PERSON. THIS PROXY STATEMENT IS DATED MAY 27, 2021. YOU SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED IN THIS PROXY STATEMENT IS ACCURATE AS OF ANY DATE

 

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OTHER THAN THAT DATE, AND THE MAILING OF THIS PROXY STATEMENT TO STOCKHOLDERS DOES NOT AND WILL NOT CREATE ANY IMPLICATION TO THE CONTRARY.

 

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Annex A

 

 

 

AGREEMENT AND PLAN OF MERGER

by and among

GI DI Orion Acquisition Inc,

GI DI Orion Merger Sub Inc

and

ORBCOMM Inc.

Dated as of April 7, 2021

 

 

 

Table of Contents

 

				Page
ARTICLE I THE MERGER					A-1
Section 1.1.		The Merger			A-1
Section 1.2.		Closing			A-1
Section 1.3.		Effective Time			A-2
ARTICLE II EFFECTS OF THE MERGER					A-2
Section 2.1.		Effects of the Merger			A-2
Section 2.2.		Certificate of Incorporation			A-2
Section 2.3.		Bylaws			A-2
Section 2.4.		Directors			A-2
Section 2.5.		Officers			A-2
Section 2.6.		Effect on Capital Stock			A-2
Section 2.7.		Payment			A-3
Section 2.8.		Company Equity and Equity-Based Awards			A-6
Section 2.9.		Adjustments to Prevent Dilution			A-7
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY					A-7
Section 3.1.		Organization and Power			A-8
Section 3.2.		Subsidiaries			A-8
Section 3.3.		Capitalization			A-8
Section 3.4.		Authority			A-9
Section 3.5.		Consents and Approvals; No Violations			A-10
Section 3.6.		Company SEC Documents			A-10
Section 3.7.		Absence of Certain Changes or Events			A-12
Section 3.8.		Information Supplied			A-12
Section 3.9.		Compliance with Laws; Permits			A-12
Section 3.10.		Tax Matters			A-14
Section 3.11.		Liabilities			A-16
Section 3.12.		Litigation			A-16
Section 3.13.		Employees and Employee Benefit Plans			A-16
Section 3.14.		Intellectual Property			A-17
Section 3.15.		Material Contracts			A-18
Section 3.16.		Real and Personal Property			A-20
Section 3.17.		Environmental Laws			A-20
Section 3.18.		Insurance Policies			A-21
Section 3.19.		Opinion of Financial Advisor			A-21
Section 3.20.		Brokers			A-21
Section 3.21.		Takeover Statutes Not Applicable; No Rights Agreement			A-21
Section 3.22.		Related Party Transactions			A-21
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB					A-21
Section 4.1.		Organization			A-22
Section 4.2.		Merger Sub			A-22
Section 4.3.		Authority			A-22
Section 4.4.		Consents and Approvals; No Violations			A-22
Section 4.5.		Information Supplied			A-23
Section 4.6.		Litigation			A-23

 

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