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x
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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¨
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Delaware
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26-1344998
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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Title of Each Class
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Name of Each Exchange on Which Registered
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Common Stock, $0.001 par value
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NASDAQ Global Select Market
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Warrants, exercisable for Common Stock at an exercise price of $11.50 per share
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NASDAQ Global Select Market
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Large accelerated filer
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¨
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Accelerated filer
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x
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Non-accelerated filer
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¨ (Do not check if a smaller reporting company)
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Smaller Reporting Company
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¨
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PART I
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|
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Item 1.
|
Business
|
1
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|
|
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Item 1A.
|
Risk Factors
|
19
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|
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Item 1B.
|
Unresolved Staff Comments
|
34
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|
|
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Item 2.
|
Properties
|
35
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|
|
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Item 3.
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Legal Proceedings
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35
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|
|
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Item 4.
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Mine Safety Disclosures
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35
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|
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PART II
|
|
|
|
|
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Item 5.
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Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
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35
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Item 6.
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Selected Financial Data
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37
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|
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Item 7.
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Management’s Discussion and Analysis of Financial Condition and Results of Operations
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38
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Item 7A.
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Quantitative and Qualitative Disclosures About Market Risk
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57
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Item 8.
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Financial Statements and Supplementary Data
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58
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Item 9.
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Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
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88
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Item 9A.
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Controls and Procedures
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88
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Item 9B.
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Other Information
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91
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PART III
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|
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Item 10.
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Directors, Executive Officers and Corporate Governance
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91
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Item 11.
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Executive Compensation
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91
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Item 12.
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Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
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91
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Item 13.
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Certain Relationships and Related Party Transactions, and Director Independence
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91
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Item 14.
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Principal Accountant Fees and Services
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91
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PART IV
|
|
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Item 15.
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Exhibits and Financial Statement Schedules
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92
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SIGNATURES
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|
93
|
1 | ||
2 | ||
3 | ||
4 | ||
5 | ||
6 | ||
7 | ||
8 | ||
9 | ||
10 | ||
11 | ||
12 | ||
13 | ||
|
|
Year Ended December 31,
|
|
||||
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2013
|
|
2012
|
|
2011
|
|
United States
|
|
46
|
%
|
46
|
%
|
46
|
%
|
Canada
|
|
13
|
%
|
14
|
%
|
13
|
%
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United Kingdom
|
|
10
|
%
|
11
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%
|
13
|
%
|
Other Countries (1)
|
|
31
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%
|
29
|
%
|
28
|
%
|
|
|
Year Ended December 31,
|
|
||||
|
|
2013
|
|
2012
|
|
2011
|
|
Commercial voice traffic (minutes)
|
|
90
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%
|
90
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%
|
90
|
%
|
Commercial data traffic (kilobytes)
|
|
67
|
%
|
69
|
%
|
70
|
%
|
14 | ||
15 | ||
16 | ||
17 | ||
18 | ||
· | our ability to maintain the health, capacity and control of our existing satellite constellation; |
· | our ability to complete the design, build and launch of Iridium NEXT and related ground infrastructure, products and services, and, once launched, our ability to maintain the health, capacity and control of the new satellite constellation; |
19 | ||
|
·
|
the level of market acceptance and demand for our products and services;
|
|
|
|
|
·
|
our ability to introduce innovative new products and services that satisfy market demand, including new service offerings on Iridium NEXT;
|
|
|
|
|
·
|
our ability to obtain additional business using our existing spectrum resources both in the United States and internationally;
|
|
|
|
|
·
|
our ability to sell our products and services in additional countries;
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|
|
|
|
·
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our ability to maintain our relationship with U.S. government customers, particularly the DoD;
|
|
|
|
|
·
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the ability of our distributors to market and distribute our products, services and applications effectively and their continued development of innovative and improved solutions and applications for our products and services;
|
|
|
|
|
·
|
the effectiveness of our competitors in developing and offering similar services and products; and
|
|
|
|
|
·
|
our ability to maintain competitive prices for our products and services and to control our costs.
|
20 | ||
|
·
|
compliance with the covenants under the Credit Facility, including financial covenants and covenants relating to hosted payloads;
|
|
|
|
|
·
|
accuracy of the representations we make under the Credit Facility;
|
|
|
|
|
·
|
compliance with the other terms of the Credit Facility, including the absence of events of default; and
|
|
|
|
|
·
|
maintenance of the insurance policy with COFACE.
|
|
•
|
|
non-compliance with the covenants under the Credit Facility, including financial covenants and covenants relating to hosted payloads;
|
|
•
|
|
cross-default with other indebtedness;
|
|
•
|
|
insolvency of any obligor under the Credit Facility;
|
|
•
|
|
revocation of the COFACE policy;
|
|
•
|
|
failure to maintain our current satellite constellation or complete Iridium NEXT by a specified time; and
|
21 | ||
|
•
|
|
a determination by the lenders that we have experienced a material adverse change in our business.
|
|
•
|
|
make capital expenditures;
|
|
•
|
|
carry out mergers and acquisitions;
|
|
•
|
|
dispose of, or grant liens on, our assets;
|
|
•
|
|
enter into transactions with our affiliates;
|
|
•
|
|
pay dividends or make distributions to our stockholders;
|
|
•
|
|
incur indebtedness;
|
|
•
|
|
prepay indebtedness; and
|
|
•
|
|
make loans, guarantees or indemnities.
|
22 | ||
|
·
|
lower than anticipated internally generated cash flows, including from Aireon and other hosted payloads;
|
|
·
|
the failure to maintain our ability to make draws under the Credit Facility, including by reason of our failure to satisfy any ongoing financial or other condition to making draws;
|
|
·
|
operating and other requirements imposed by the lenders under the Credit Facility;
|
|
·
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engineering or manufacturing performance falling below expected levels of output or efficiency;
|
|
·
|
interference between any hosted payload and our network;
|
|
·
|
complex integration of our ground segment with the Iridium NEXT satellites and the transition from our current constellation;
|
|
·
|
denial or delays in receipt of regulatory approvals or non-compliance with conditions imposed by regulatory authorities;
|
|
·
|
the breakdown or failure of equipment or systems;
|
|
·
|
non-performance by third-party contractors, including the prime system contractor;
|
|
·
|
the inability to license necessary technology on commercially reasonable terms or at all;
|
|
·
|
use of a new or unproven launch vehicle or the failure of the launch services provider to sustain its business;
|
|
·
|
launch delays or failures or in-orbit satellite failures once launched or the decision to manufacture additional replacement satellites for future launches;
|
|
·
|
labor disputes or disruptions in labor productivity or the unavailability of skilled labor;
|
|
·
|
increases in the costs of materials;
|
|
·
|
changes in project scope;
|
|
·
|
additional requirements imposed by changes in laws; or
|
|
·
|
severe weather or catastrophic events, such as fires, earthquakes or storms.
|
23 | ||
24 | ||
25 | ||
26 | ||
27 | ||
28 | ||
29 | ||
• | subject us to significant liabilities to third parties, including treble damages; |
• | require disputed rights to be licensed from a third party for royalties that may be substantial; |
• | require us to cease using technology that is important to our business; or |
• | prohibit us from selling some or all of our products or offering some or all of our services. |
• | difficulties in penetrating new markets due to established and entrenched competitors; |
• | difficulties in developing products and services that are tailored to the needs of local customers; |
• | lack of local acceptance or knowledge of our products and services; |
• | lack of recognition of our products and services; |
• | unavailability of or difficulties in establishing relationships with distributors; |
• | significant investments, including the development and deployment of dedicated gateways, as some countries require physical gateways within their jurisdiction to connect the traffic coming to and from their territory; |
• | instability of international economies and governments; |
• | changes in laws and policies affecting trade and investment in other jurisdictions; |
• | exposure to varying legal standards, including intellectual property protection in other jurisdictions; |
• | difficulties in obtaining required regulatory authorizations; |
• | difficulties in enforcing legal rights in other jurisdictions; |
• | local domestic ownership requirements; |
• | requirements that operational activities be performed in-country; |
• | changing and conflicting national and local regulatory requirements; and |
• | foreign currency exchange rates and exchange controls. |
30 | ||
31 | ||
32 | ||
33 | ||
• | failure in the performance of our current or future satellites or a delay in the launch of Iridium NEXT; |
• | failure of Aireon to successfully develop and market its service; |
• | failure to comply with the terms of the Credit Facility; |
• | failure to maintain our ability to make draws under the Credit Facility; |
• | actual or anticipated variations in our operating results, including termination or expiration of one or more of our key contracts, or a change in sales levels under one or more of our key contracts; |
• | sales of a large number of shares of our common stock or the perception that such sales may occur; |
• | dilutive effect of outstanding stock options; |
• | changes in financial estimates by industry analysts, or our failure to meet or exceed any such estimates, or changes in the recommendations of any industry analysts that elect to follow our common stock or the common stock of our competitors; |
• | actual or anticipated changes in economic, political or market conditions, such as recessions or international currency fluctuations; |
• | actual or anticipated changes in the regulatory environment affecting our industry; |
• | changes in the market valuations of our competitors; |
• | low trading volume; and |
• | announcements by our competitors regarding significant new products or services or significant acquisitions, strategic partnerships, divestitures, joint ventures or other strategic initiatives. |
Item 1B. | Unresolved Staff Comments |
34 | ||
|
|
|
|
Approximate
|
|
|
|
|
Location
|
|
Country
|
|
Square Feet
|
|
Facilities
|
|
Owned/Leased
|
McLean, Virginia
|
|
USA
|
|
21,600
|
|
Corporate Headquarters
|
|
Leased
|
|
|
|
|
|
|
|
|
|
Chandler, Arizona
|
|
USA
|
|
197,000
|
|
Technical Support Center, Distribution Center, and Warehouse
|
|
Leased
|
|
|
|
|
|
|
|
|
|
Leesburg, Virginia
|
|
USA
|
|
40,000
|
|
Satellite Network Operations Center
|
|
Owned
|
|
|
|
|
|
|
|
|
|
Tempe, Arizona
|
|
USA
|
|
31,000
|
|
System Gateway and Satellite Teleport Network Facility
|
|
Owned Building on Leased Land
|
|
|
|
|
|
|
|
|
|
Tempe, Arizona
|
|
USA
|
|
25,000
|
|
Operations and Finance Office Space
|
|
Leased
|
|
|
|
|
|
|
|
|
|
Fairbanks, Alaska
|
|
USA
|
|
4,000
|
|
Satellite Teleport Network Facility
|
|
Owned
|
|
|
|
|
|
|
|
|
|
Chandler, Arizona
|
|
USA
|
|
3,000
|
|
Satellite Teleport Network Facility
|
|
Owned Buildings on Leased Land
|
|
|
|
|
|
|
|
|
|
Svalbard
|
|
Norway
|
|
1,800
|
|
Satellite Teleport Network Facility
|
|
Owned Building on Leased Land
|
|
|
|
|
|
|
|
|
|
Yellowknife, Northwest Territories
|
|
Canada
|
|
1,800
|
|
Satellite Teleport Network Facility
|
|
Owned Building on Leased Land
|
|
|
|
|
|
|
|
|
|
Iqaluit, Nunavut
|
|
Canada
|
|
1,800
|
|
Satellite Teleport Network Facility
|
|
Owned Building on Leased Land
|
|
|
|
|
|
|
|
|
|
Izhevsk, Udmurtia
|
|
Russia
|
|
1,300
|
|
Satellite Earth Terminal Facility
|
|
Leased
|
Item 3. | Legal Proceedings |
Item 4. | Mine Safety Disclosures |
Item 5. |
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
|
|
|
Common Stock
|
|
||||
|
|
High
|
|
Low
|
|
||
Quarter Ended March 31, 2012
|
|
$
|
9.50
|
|
$
|
7.13
|
|
Quarter Ended June 30, 2012
|
|
|
9.15
|
|
|
8.16
|
|
Quarter Ended September 30, 2012
|
|
|
9.73
|
|
|
6.88
|
|
Quarter Ended December 31, 2012
|
|
|
7.83
|
|
|
5.25
|
|
Quarter Ended March 31, 2013
|
|
|
7.34
|
|
|
5.90
|
|
Quarter Ended June 30, 2013
|
|
|
7.85
|
|
|
5.98
|
|
Quarter Ended September 30, 2013
|
|
|
9.22
|
|
|
6.35
|
|
Quarter Ended December 31, 2013
|
|
|
6.91
|
|
|
5.37
|
|
35 | ||
|
|
12/31/08
|
|
12/31/09
|
|
12/31/10
|
|
12/31/11
|
|
12/31/12
|
|
12/31/13
|
|
||||||
Iridium Communications Inc.
|
|
$
|
100.00
|
|
$
|
89.22
|
|
$
|
91.67
|
|
$
|
85.67
|
|
$
|
74.67
|
|
$
|
69.44
|
|
S&P 500 Index
|
|
$
|
100.00
|
|
$
|
123.45
|
|
$
|
139.23
|
|
$
|
139.23
|
|
$
|
157.90
|
|
$
|
204.63
|
|
Dow Jones Industrial Average Index
|
|
$
|
100.00
|
|
$
|
118.82
|
|
$
|
131.92
|
|
$
|
139.21
|
|
$
|
149.31
|
|
$
|
188.88
|
|
NASDAQ Telecommunications Index
|
|
$
|
100.00
|
|
$
|
148.24
|
|
$
|
154.06
|
|
$
|
134.62
|
|
$
|
137.31
|
|
$
|
170.29
|
|
36 | ||
|
|
For the Year Ended December 31,
|
|
|||||||||||||
Statement of Operations Data (a)
|
|
2013
|
|
2012
|
|
2011
|
|
2010
|
|
2009
|
|
|||||
|
|
(In thousands, except per share amounts)
|
|
|||||||||||||
Revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Services
|
|
$
|
292,092
|
|
$
|
273,491
|
|
$
|
262,322
|
|
$
|
236,351
|
|
$
|
53,014
|
|
Subscriber equipment
|
|
|
73,303
|
|
|
93,866
|
|
|
94,709
|
|
|
90,184
|
|
|
17,293
|
|
Engineering and support services
|
|
|
17,254
|
|
|
16,163
|
|
|
27,276
|
|
|
21,638
|
|
|
5,682
|
|
Total revenue
|
|
$
|
382,649
|
|
$
|
383,520
|
|
$
|
384,307
|
|
$
|
348,173
|
|
$
|
75,989
|
|
Total operating expenses
|
|
$
|
272,755
|
|
$
|
278,446
|
|
$
|
307,306
|
|
$
|
310,813
|
|
$
|
89,164
|
|
Operating income (loss)
|
|
$
|
109,894
|
|
$
|
105,074
|
|
$
|
77,001
|
|
$
|
37,360
|
|
$
|
(13,175)
|
|
Net income (loss)
|
|
$
|
62,517
|
|
$
|
64,631
|
|
$
|
41,035
|
|
$
|
19,941
|
|
$
|
(42,239)
|
|
Comprehensive income (loss)
|
|
$
|
62,185
|
|
$
|
64,499
|
|
$
|
40,720
|
|
$
|
20,009
|
|
$
|
(42,217)
|
|
Weighted average shares outstanding - basic
|
|
|
76,909
|
|
|
74,239
|
|
|
72,164
|
|
|
70,289
|
|
|
53,964
|
|
Weighted average shares outstanding - diluted
|
|
|
87,511
|
|
|
78,182
|
|
|
73,559
|
|
|
72,956
|
|
|
53,964
|
|
Net income (loss) per share - basic
|
|
$
|
0.72
|
|
$
|
0.85
|
|
$
|
0.57
|
|
$
|
0.28
|
|
$
|
(0.78)
|
|
Net income (loss) per share - diluted
|
|
$
|
0.71
|
|
$
|
0.83
|
|
$
|
0.56
|
|
$
|
0.27
|
|
$
|
(0.78)
|
|
|
|
As of December 31,
|
|
|||||||||||||
Balance Sheet Data
|
|
2013
|
|
2012
|
|
2011
|
|
2010
|
|
2009
|
|
|||||
|
|
(In thousands)
|
|
|||||||||||||
Total current assets
|
|
$
|
369,558
|
|
$
|
367,166
|
|
$
|
227,242
|
|
$
|
208,729
|
|
$
|
220,937
|
|
Total assets
|
|
$
|
2,309,796
|
|
$
|
1,916,341
|
|
$
|
1,374,186
|
|
$
|
1,047,449
|
|
$
|
826,396
|
|
Total long-term liabilities
|
|
$
|
1,268,802
|
|
$
|
951,131
|
|
$
|
576,278
|
|
$
|
258,692
|
|
$
|
107,844
|
|
Total stockholders' equity
|
|
$
|
939,495
|
|
$
|
876,558
|
|
$
|
702,018
|
|
$
|
654,916
|
|
$
|
629,621
|
|
|
|
For the Year Ended December 31,
|
|
|||||||||||||
Other Data
|
|
2013
|
|
2012
|
|
2011
|
|
2010
|
|
2009
|
|
|||||
|
|
(In thousands)
|
|
|||||||||||||
Cash provided by (used in):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating activities
|
|
$
|
183,048
|
|
$
|
174,023
|
|
$
|
183,461
|
|
$
|
151,438
|
|
$
|
23,168
|
|
Investing activities
|
|
$
|
(485,836)
|
|
$
|
(443,542)
|
|
$
|
(359,337)
|
|
$
|
(242,086)
|
|
$
|
354,537
|
|
Financing activities
|
|
$
|
234,712
|
|
$
|
387,571
|
|
$
|
192,310
|
|
$
|
63,402
|
|
$
|
(230,656)
|
|
(a) | The years ended December 31, 2013, 2012, 2011 and 2010 reflect the results of a full year of operations. On September 29, 2009, we acquired, directly and indirectly, all the outstanding equity of Iridium Holdings LLC, or Iridium Holdings, and the data presented in the table above for the year ended December 31, 2009 reflects the results of post-acquisition activities for the three months ended December 31, 2009. The year ended December 31, 2009 included a $34.1 million change in the fair value of warrants due to our determination that the exchange agreements entered into with the holders of 26.8 million warrants in connection with the acquisition of Iridium Holdings were derivative instruments. We conducted no material operating activities for the periods prior to the acquisition of Iridium Holdings in September 2009. |
37 | ||
38 | ||
· | Tranche A $1,537,500,000 at a fixed rate of 4.96%; and |
· | Tranche B $262,500,000 at a floating rate equal to the London Interbank Offer Rate, or LIBOR, plus 1.95%. |
39 | ||
At December 31,
|
|
Amount
|
|
|
2014
|
|
$
|
108
|
|
2015
|
|
|
135
|
|
2016
|
|
|
162
|
|
2017
|
|
|
189
|
|
· | an available cash balance of at least $25 million; |
· | a debt-to-equity ratio, which is calculated as the ratio of total net debt to the aggregate of total net debt and total stockholders’ equity, of no more than 0.7 to 1, measured each June 30 and December 31; |
· | specified maximum levels of annual capital expenditures (excluding expenditures on the construction of Iridium NEXT satellites) through the year ending December 31, 2024; |
· | specified minimum consolidated operational EBITDA levels for the 12-month periods ending each December 31 and June 30 through June 30, 2017; |
· | specified minimum cash flow requirements from customers who have hosted payloads on our satellites during the 12-month periods ending each December 31 and June 30, beginning December 31, 2014 and ending on June 30, 2017; |
· | a debt service coverage ratio, measured during the repayment period, of not less than 1 to 1.5; and |
· | specified maximum leverage levels during the repayment period that decline from a ratio of 4.75 to 1 for the twelve months ending June 30, 2017 to a ratio of 2.5 to 1 for the twelve months ending June 30, 2025. |
40 | ||
41 | ||
· | demand for remote and reliable mobile communications services; |
· | increased demand for communications services by disaster and relief agencies and emergency first responders; |
· | a broad and expanding wholesale distribution network with access to diverse and geographically dispersed niche markets; |
· | a growing number of new products and services and related applications; |
· | improved data transmission speeds for mobile satellite service offerings; |
· | regulatory mandates requiring the use of mobile satellite services; |
· | a general reduction in prices of mobile satellite services and subscriber equipment; and |
· | geographic market expansion through the receipt of licenses to sell our services in additional countries. |
42 | ||
|
• | our ability to develop Iridium NEXT and related ground infrastructure, and to develop products and services for Iridium NEXT; |
• | our ability to access the Credit Facility to meet our future capital requirements for the design, build and launch of the Iridium NEXT satellites, including our ability to negotiate modifications to the Credit Facility with our lenders and to obtain any needed additional external debt or equity financing; |
• | our ability to obtain sufficient internally generated cash flows, including potential cash flows from hosted payloads and Iridium PRIME, to fund a portion of the costs associated with Iridium NEXT and support ongoing business; |
• | Aireon’s ability to successfully fund, develop and market its space-based ADS-B global aviation monitoring service to be carried as a hosted payload on the Iridium NEXT system; |
• | our ability to maintain the health, capacity, control and level of service of our existing satellite network through the transition to Iridium NEXT; |
• | changes in general economic, business and industry conditions; |
• | our reliance on a single primary commercial gateway and a primary satellite network operations center; |
• | competition from other mobile satellite service providers and, to a lesser extent, from the expansion of terrestrial-based cellular phone systems and related pricing pressures; |
• | market acceptance of our products; |
• | regulatory requirements in existing and new geographic markets; |
• | rapid and significant technological changes in the telecommunications industry; |
• | reliance on our wholesale distribution network to market and sell our products, services and applications effectively; |
• | reliance on single-source suppliers for some of the components required in the manufacture of our end-user subscriber equipment and our ability to purchase parts that are periodically subject to shortages resulting from surges in demand, natural disasters or other events; and |
• | reliance on a few significant customers for a substantial portion of our revenue, as a result of which the loss or decline in business with any of these customers may negatively impact our revenue and collectability of related accounts receivable. |
43 | ||
44 | ||
45 | ||
46 | ||
|
|
Year Ended December 31,
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
% of Total
|
|
|
|
|
|
% of Total
|
|
|
Change
|
|
|||
($ in thousands)
|
|
2013
|
|
Revenue
|
|
|
2012
|
|
Revenue
|
|
|
Dollars
|
|
Percent
|
|
|||
Revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commercial
|
|
$
|
232,928
|
|
61
|
%
|
|
$
|
211,741
|
|
55
|
%
|
|
$
|
21,187
|
|
10
|
%
|
Government
|
|
|
59,164
|
|
15
|
%
|
|
|
61,750
|
|
16
|
%
|
|
|
(2,586)
|
|
(4)
|
%
|
Total service revenue
|
|
|
292,092
|
|
76
|
%
|
|
|
273,491
|
|
71
|
%
|
|
|
18,601
|
|
7
|
%
|
Subscriber equipment
|
|
|
73,303
|
|
19
|
%
|
|
|
93,866
|
|
25
|
%
|
|
|
(20,563)
|
|
(22)
|
%
|
Engineering and support services
|
|
|
17,254
|
|
5
|
%
|
|
|
16,163
|
|
4
|
%
|
|
|
1,091
|
|
7
|
%
|
Total revenue
|
|
|
382,649
|
|
100
|
%
|
|
|
383,520
|
|
100
|
%
|
|
|
(871)
|
|
0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of services (exclusive of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
depreciation and amortization)
|
|
|
59,346
|
|
16
|
%
|
|
|
60,937
|
|
16
|
%
|
|
|
(1,591)
|
|
(3)
|
%
|
Cost of subscriber equipment
|
|
|
52,062
|
|
14
|
%
|
|
|
53,285
|
|
14
|
%
|
|
|
(1,223)
|
|
(2)
|
%
|
Research and development
|
|
|
11,149
|
|
3
|
%
|
|
|
15,525
|
|
4
|
%
|
|
|
(4,376)
|
|
(28)
|
%
|
Selling, general and administrative
|
|
|
75,218
|
|
19
|
%
|
|
|
67,589
|
|
18
|
%
|
|
|
7,629
|
|
11
|
%
|
Depreciation and amortization
|
|
|
74,980
|
|
19
|
%
|
|
|
81,110
|
|
21
|
%
|
|
|
(6,130)
|
|
(8)
|
%
|
Total operating expenses
|
|
|
272,755
|
|
71
|
%
|
|
|
278,446
|
|
73
|
%
|
|
|
(5,691)
|
|
(2)
|
%
|
Operating income
|
|
|
109,894
|
|
29
|
%
|
|
|
105,074
|
|
27
|
%
|
|
|
4,820
|
|
5
|
%
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income, net
|
|
|
2,276
|
|
1
|
%
|
|
|
1,072
|
|
0
|
%
|
|
|
1,204
|
|
112
|
%
|
Undrawn credit facility fees
|
|
|
(7,708)
|
|
(2)
|
%
|
|
|
(10,232)
|
|
(2)
|
%
|
|
|
2,524
|
|
(25)
|
%
|
Other income (expense), net
|
|
|
6,003
|
|
1
|
%
|
|
|
(896)
|
|
0
|
%
|
|
|
6,899
|
|
(770)
|
%
|
Total other income (expense)
|
|
|
571
|
|
0
|
%
|
|
|
(10,056)
|
|
(2)
|
%
|
|
|
10,627
|
|
(106)
|
%
|
Income before income taxes
|
|
|
110,465
|
|
29
|
%
|
|
|
95,018
|
|
25
|
%
|
|
|
15,447
|
|
16
|
%
|
Provision for income taxes
|
|
|
(47,948)
|
|
(13)
|
%
|
|
|
(30,387)
|
|
(8)
|
%
|
|
|
(17,561)
|
|
58
|
%
|
Net income
|
|
$
|
62,517
|
|
16
|
%
|
|
$
|
64,631
|
|
17
|
%
|
|
$
|
(2,114)
|
|
(3)
|
%
|
|
|
Year Ended
|
|
Year Ended
|
|
|
|
|
|
|
|
|
|
||||||||||||
|
|
December 31, 2013
|
|
December 31, 2012
|
|
Change
|
|
||||||||||||||||||
|
|
(Revenue in millions and subscribers in thousands)
|
|
||||||||||||||||||||||
|
|
|
|
|
Billable
|
|
|
|
|
|
|
|
Billable
|
|
|
|
|
|
|
|
Billable
|
|
|
|
|
|
|
Revenue
|
|
Subscribers (1)
|
|
ARPU (2)
|
|
Revenue
|
|
Subscribers (1)
|
|
ARPU (2)
|
|
Revenue
|
|
Subscribers
|
|
ARPU
|
|
||||||
Commercial voice and data
|
|
$
|
184.0
|
|
340
|
|
$
|
46
|
|
$
|
170.9
|
|
332
|
|
$
|
45
|
|
$
|
13.1
|
|
8
|
|
$
|
1
|
|
Commercial M2M data
|
|
|
48.9
|
|
273
|
|
|
16
|
|
|
40.8
|
|
228
|
|
|
17
|
|
|
8.1
|
|
45
|
|
|
(1)
|
|
Total
|
|
$
|
232.9
|
|
613
|
|
|
|
|
$
|
211.7
|
|
560
|
|
|
|
|
$
|
21.2
|
|
53
|
|
|
|
|
(2) |
Average monthly revenue per unit, or ARPU, is calculated by dividing revenue in the respective period by the average of the number of billable subscribers at the beginning of the period and the number of billable subscribers at the end of the period and then dividing the result by the number of months in the period.
|
47 | ||
|
|
Year Ended
|
|
Year Ended
|
|
|
|
|
|
|
||||||
|
|
December 31, 2013
|
|
December 31, 2012
|
|
Change
|
|
|||||||||
|
|
(Revenue in millions and subscribers in thousands)
|
|
|||||||||||||
|
|
|
|
|
Billable
|
|
|
|
|
Billable
|
|
|
|
|
Billable
|
|
|
|
Revenue
|
|
Subscribers (1)
|
|
Revenue
|
|
Subscribers (1)
|
|
Revenue
|
|
Subscribers
|
|
|||
Government service revenue
|
|
$
|
59.2
|
|
51
|
|
$
|
61.8
|
|
51
|
|
$
|
(2.6)
|
|
-
|
|
|
|
Year Ended
|
|
Year Ended
|
|
|
|
|||
|
|
December 31, 2013
|
|
December 31, 2012
|
|
Change
|
|
|||
|
|
(In millions)
|
|
|||||||
Government
|
|
$
|
15.5
|
|
$
|
15.0
|
|
$
|
0.5
|
|
Commercial
|
|
|
1.8
|
|
|
1.2
|
|
|
0.6
|
|
Total
|
|
$
|
17.3
|
|
$
|
16.2
|
|
$
|
1.1
|
|
48 | ||
49 | ||
50 | ||
|
|
Year Ended December 31,
|
|
|
|
|
|
|
||||||||||
|
|
|
|
% of Total
|
|
|
|
|
% of Total
|
|
|
Change
|
|
|||||
($ in thousands)
|
|
2012
|
|
Revenue
|
|
|
2011
|
|
Revenue
|
|
|
Dollars
|
|
Percent
|
|
|||
Revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Services
|
|
$
|
273,491
|
|
71
|
%
|
|
$
|
262,322
|
|
68
|
%
|
|
$
|
11,169
|
|
4
|
%
|
Subscriber equipment
|
|
|
93,866
|
|
25
|
%
|
|
|
94,709
|
|
25
|
%
|
|
|
(843)
|
|
(1)
|
%
|
Engineering and support services
|
|
|
16,163
|
|
4
|
%
|
|
|
27,276
|
|
7
|
%
|
|
|
(11,113)
|
|
(41)
|
%
|
Total revenue
|
|
|
383,520
|
|
100
|
%
|
|
|
384,307
|
|
100
|
%
|
|
|
(787)
|
|
0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of services (exclusive of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
depreciation and
amortization) |
|
|
60,937
|
|
16
|
%
|
|
|
71,181
|
|
19
|
%
|
|
|
(10,244)
|
|
(14)
|
%
|
Cost of subscriber equipment
|
|
|
53,285
|
|
14
|
%
|
|
|
54,113
|
|
14
|
%
|
|
|
(828)
|
|
(2)
|
%
|
Research and development
|
|
|
15,525
|
|
4
|
%
|
|
|
18,684
|
|
5
|
%
|
|
|
(3,159)
|
|
(17)
|
%
|
Selling, general and administrative
|
|
|
67,589
|
|
18
|
%
|
|
|
65,682
|
|
17
|
%
|
|
|
1,907
|
|
3
|
%
|
Depreciation and amortization
|
|
|
81,110
|
|
21
|
%
|
|
|
97,646
|
|
25
|
%
|
|
|
(16,536)
|
|
(17)
|
%
|
Total operating expenses
|
|
|
278,446
|
|
73
|
%
|
|
|
307,306
|
|
80
|
%
|
|
|
(28,860)
|
|
(9)
|
%
|
Operating income
|
|
|
105,074
|
|
27
|
%
|
|
|
77,001
|
|
20
|
%
|
|
|
28,073
|
|
36
|
%
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income, net
|
|
|
1,072
|
|
0
|
%
|
|
|
1,200
|
|
0
|
%
|
|
|
(128)
|
|
(11)
|
%
|
Undrawn credit facility fees
|
|
|
(10,232)
|
|
(2)
|
%
|
|
|
(12,524)
|
|
(3)
|
%
|
|
|
2,292
|
|
(18)
|
%
|
Other expense, net
|
|
|
(896)
|
|
0
|
%
|
|
|
(96)
|
|
0
|
%
|
|
|
(800)
|
|
833
|
%
|
Total other expense
|
|
|
(10,056)
|
|
(2)
|
%
|
|
|
(11,420)
|
|
(3)
|
%
|
|
|
1,364
|
|
(12)
|
%
|
Income before income taxes
|
|
|
95,018
|
|
25
|
%
|
|
|
65,581
|
|
17
|
%
|
|
|
29,437
|
|
45
|
%
|
Provision for income taxes
|
|
|
(30,387)
|
|
(8)
|
%
|
|
|
(24,546)
|
|
(6)
|
%
|
|
|
(5,841)
|
|
24
|
%
|
Net income
|
|
$
|
64,631
|
|
17
|
%
|
|
$
|
41,035
|
|
11
|
%
|
|
$
|
23,596
|
|
58
|
%
|
|
|
Service Revenue
|
|
||||||||||||||||||||||
|
|
(Revenue in millions and subscribers in thousands)
|
|
||||||||||||||||||||||
|
|
Year Ended
|
|
Year Ended
|
|
|
|
|
|
|
|
||||||||||||||
|
|
December 31, 2012
|
|
December 31, 2011
|
|
Change
|
|
||||||||||||||||||
|
|
|
|
Billable
|
|
|
|
|
|
Billable
|
|
|
|
|
|
Billable
|
|
|
|
||||||
|
|
Revenue
|
|
Subscribers (1)
|
|
ARPU (2)
|
|
Revenue
|
|
Subscribers (1)
|
|
ARPU (2)
|
|
Revenue
|
|
Subscribers
|
|
ARPU
|
|
||||||
Commercial voice and data
|
|
$
|
170.9
|
|
332
|
|
$
|
45
|
|
$
|
167.5
|
|
307
|
|
$
|
48
|
|
$
|
3.4
|
|
25
|
|
$
|
(3)
|
|
Commercial M2M data
|
|
|
40.8
|
|
228
|
|
|
17
|
|
|
30.5
|
|
168
|
|
|
18
|
|
|
10.3
|
|
60
|
|
|
(1)
|
|
Total
|
|
|
211.7
|
|
560
|
|
|
|
|
|
198.0
|
|
475
|
|
|
|
|
|
13.7
|
|
85
|
|
|
|
|
Government voice and data
|
|
|
58.9
|
|
36
|
|
|
135
|
|
|
62.0
|
|
37
|
|
|
141
|
|
|
(3.1)
|
|
(1)
|
|
|
(6)
|
|
Government M2M data
|
|
|
2.9
|
|
15
|
|
|
18
|
|
|
2.3
|
|
11
|
|
|
21
|
|
|
0.6
|
|
4
|
|
|
(3)
|
|
Total
|
|
|
61.8
|
|
51
|
|
|
|
|
|
64.3
|
|
48
|
|
|
|
|
|
(2.5)
|
|
3
|
|
|
|
|
Total
|
|
$
|
273.5
|
|
611
|
|
|
|
|
$
|
262.3
|
|
523
|
|
|
|
|
$
|
11.2
|
|
88
|
|
|
|
|
51 | ||
|
|
Engineering and Support Service Revenue
|
|
|||||||
|
|
(In millions)
|
|
|||||||
|
|
Year Ended
|
|
Year Ended
|
|
|
|
|||
|
|
December 31, 2012
|
|
December 31, 2011
|
|
Change
|
|
|||
Government
|
|
$
|
15.0
|
|
$
|
25.9
|
|
$
|
(10.9)
|
|
Commercial
|
|
|
1.2
|
|
|
1.4
|
|
|
(0.2)
|
|
Total
|
|
$
|
16.2
|
|
$
|
27.3
|
|
$
|
(11.1)
|
|
52 | ||
53 | ||
· | an available cash balance of at least $25 million; |
· | a debt-to-equity ratio, which is calculated as the ratio of total net debt to the aggregate of total net debt and total stockholders’ equity, of no more than 0.7 to 1, measured each June 30 and December 31; |
· | specified maximum levels of annual capital expenditures (excluding expenditures on the construction of Iridium NEXT satellites) through the year ending December 31, 2024; |
· | specified minimum consolidated operational EBITDA levels for the 12-month periods ending each December 31 and June 30 through June 30, 2017; |
· | specified minimum cash flow requirements from customers who have hosted payloads on our satellites during the 12-month periods ending each December 31 and June 30, beginning December 31, 2014 and ending on June 30, 2017; |
· | a debt service coverage ratio, measured during the repayment period, of not less than 1 to 1.5; and |
· | specified maximum leverage levels during the repayment period that decline from a ratio of 4.75 to 1 for the twelve months ending June 30, 2017 to a ratio of 2.5 to 1 for the twelve months ending June 30, 2025. |
54 | ||
Statement of Cash Flows
|
|
2013
|
|
2012
|
|
Change
|
|
|||
Net cash provided by operating activities
|
|
$
|
183.0
|
|
$
|
174.0
|
|
$
|
9.0
|
|
Net cash used in investing activities
|
|
$
|
(485.8)
|
|
$
|
(443.5)
|
|
$
|
(42.3)
|
|
Net cash provided by financing activities
|
|
$
|
234.7
|
|
$
|
387.6
|
|
$
|
(152.9)
|
|
55 | ||
Statement of Cash Flows
|
|
2012
|
|
2011
|
|
Change
|
|
|||
Net cash provided by operating activities
|
|
$
|
174.0
|
|
$
|
183.5
|
|
$
|
(9.5)
|
|
Net cash used in investing activities
|
|
$
|
(443.5)
|
|
$
|
(359.3)
|
|
$
|
(84.2)
|
|
Net cash provided by financing activities
|
|
$
|
387.6
|
|
$
|
192.3
|
|
$
|
195.3
|
|
|
|
Less than
|
|
|
|
|
|
|
|
More than
|
|
|
|
|
||
Contractual Obligations
|
|
1 year
|
|
1-3 Years
|
|
3-5 years
|
|
5 years
|
|
Total
|
|
|||||
Payment obligations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thales (1)
|
|
$
|
458.8
|
|
$
|
544.1
|
|
$
|
166.7
|
|
$
|
-
|
|
$
|
1,169.6
|
|
SpaceX
|
|
|
83.5
|
|
|
278.1
|
|
|
21.8
|
|
|
-
|
|
|
383.4
|
|
Kosmotras (2)
|
|
|
25.3
|
|
|
8.2
|
|
|
-
|
|
|
-
|
|
|
33.5
|
|
Boeing (3)
|
|
|
34.7
|
|
|
72.5
|
|
|
18.9
|
|
|
-
|
|
|
126.1
|
|
Debt obligations (4)
|
|
|
9.6
|
|
|
-
|
|
|
166.3
|
|
|
872.9
|
|
|
1,048.8
|
|
Operating lease obligations (5)
|
|
|
2.7
|
|
|
5.2
|
|
|
4.5
|
|
|
7.4
|
|
|
19.8
|
|
Uncertain tax positions (6)
|
|
|
0.4
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
1.3
|
|
Unconditional purchase obligations (7)
|
|
|
20.6
|
|
|
1.1
|
|
|
-
|
|
|
-
|
|
|
21.7
|
|
Total
|
|
$
|
635.6
|
|
$
|
909.2
|
|
$
|
378.2
|
|
$
|
880.3
|
|
$
|
2,804.2
|
|
(1) | Thales obligations consist of commitments under the FSD for the design and manufacture of satellites for Iridium NEXT and will be satisfied as follows: (i) 85% of these costs will be funded by draws under the Credit Facility and (ii) 15% of these costs will be paid in cash when due. |
(2) | Kosmotras obligations consist of remaining payments to purchase one launch under the existing Kosmotras Agreement. The Kosmotras Agreement, as amended, provided for the purchase of up to six dedicated launches, for a total of approximately $184.3 million, and six additional launch options. Each launch can carry two satellites. In June 2013, we exercised an option for one dedicated launch to carry the first two Iridium NEXT satellites. The total cost under the contract for this single launch will be $51.8 million. As of December 31, 2013, we had made aggregate payments of $18.3 million to Kosmotras. The option to purchase three dedicated launches expired as of December 31, 2013, and the option to purchase the remaining two dedicated launches expires March 31, 2014. |
(3) | Boeing obligations consist of an estimated commitment related to our existing satellite systems. This estimate is based on an expected future completion date of June 2017 for Iridium NEXT. The Boeing amounts in the above table do not include contractual obligations related to Iridium NEXT because an operations and maintenance agreement for Iridium NEXT has not yet been executed. |
56 | ||
(4) | Debt obligations include amounts drawn under the Credit Facility as of December 31, 2013, which include $1,039.2 million of outstanding debt obligations, $1.6 million of accrued commitment fees on the undrawn portion of the Credit Facility and $8.0 million of accrued interest through December 31, 2013. We have not included future debt obligations or future interest costs in the table because the timing of the borrowings is unknown and there is a variable component of the interest. We have also excluded future amounts for the commitment fee, which is 0.80% per year on any undrawn portion of the Credit Facility, as the timing of additional borrowings is unknown. |
(5) | Operating lease obligations do not include payments to landlords covering real estate taxes, common area maintenance and other charges, as such fees are not determinable based upon the provisions of our lease agreements. |
(6) | As of December 31, 2013, we estimated our uncertain tax positions to be $1.3 million, including penalties and interest. We estimate that $0.4 million of our uncertain tax position will expire or be realized within the next 12 months. However, we are unable to reasonably estimate the period of the possible future payments for the remaining balance, and therefore the remaining balance has not been reflected in a specified period. |
(7) | Unconditional purchase obligations include our agreement with a supplier for the manufacturing of our devices and various commitments with other vendors that are enforceable, legally binding and have specified terms, including fixed or minimum quantities, minimum or variable price provisions, and a fixed timeline. Unconditional purchase obligations do not include agreements that are cancelable by us without penalty. |
Item 7A. | Quantitative and Qualitative Disclosures About Market Risk |
57 | ||
|
Page
|
Iridium Communications Inc.:
|
|
Report of Independent Registered Public Accounting Firm
|
59
|
Consolidated Balance Sheets
|
60
|
Consolidated Statements of Operations and Comprehensive Income
|
61
|
Consolidated Statements of Changes in Stockholders’ Equity
|
62
|
Consolidated Statements of Cash Flows
|
63
|
Notes to Consolidated Financial Statements
|
65
|
58 | ||
59 | ||
|
|
December 31,
|
|
December 31,
|
|
||
|
|
2013
|
|
2012
|
|
||
|
|
|
|
|
|
|
|
Assets
|
|
|
|
|
|
|
|
Current assets:
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
186,342
|
|
$
|
254,418
|
|
Marketable securities
|
|
|
76,647
|
|
|
-
|
|
Accounts receivable, net
|
|
|
54,758
|
|
|
56,135
|
|
Inventory
|
|
|
29,532
|
|
|
26,335
|
|
Deferred tax assets, net
|
|
|
9,076
|
|
|
21,160
|
|
Income tax receivable
|
|
|
685
|
|
|
4,302
|
|
Prepaid expenses and other current assets
|
|
|
12,518
|
|
|
4,816
|
|
Total current assets
|
|
|
369,558
|
|
|
367,166
|
|
Property and equipment, net
|
|
|
1,575,579
|
|
|
1,210,693
|
|
Restricted cash
|
|
|
81,223
|
|
|
54,233
|
|
Other assets
|
|
|
8,909
|
|
|
2,912
|
|
Intangible assets, net
|
|
|
57,452
|
|
|
70,502
|
|
Deferred financing costs
|
|
|
130,036
|
|
|
123,796
|
|
Goodwill
|
|
|
87,039
|
|
|
87,039
|
|
Total assets
|
|
$
|
2,309,796
|
|
$
|
1,916,341
|
|
|
|
|
|
|
|
|
|
Liabilities and stockholders' equity
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
Accounts payable
|
|
$
|
12,934
|
|
$
|
13,834
|
|
Accrued expenses and other current liabilities
|
|
|
39,209
|
|
|
26,704
|
|
Interest payable
|
|
|
7,989
|
|
|
5,359
|
|
Deferred revenue
|
|
|
41,367
|
|
|
42,755
|
|
Total current liabilities
|
|
|
101,499
|
|
|
88,652
|
|
Accrued satellite operations and maintenance
|
|
|
|
|
|
|
|
expense, net of current portion
|
|
|
16,389
|
|
|
17,727
|
|
Credit facility
|
|
|
1,039,203
|
|
|
751,787
|
|
Deferred tax liabilities, net
|
|
|
202,825
|
|
|
167,821
|
|
Other long-term liabilities
|
|
|
10,385
|
|
|
13,796
|
|
Total liabilities
|
|
|
1,370,301
|
|
|
1,039,783
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders' equity
|
|
|
|
|
|
|
|
Series A Preferred Stock, $0.0001 par value, 1,000 shares authorized,
|
|
|
|
|
|
|
|
issued and outstanding
|
|
|
-
|
|
|
-
|
|
Common stock, $0.001 par value, 300,000 shares authorized and
|
|
|
|
|
|
|
|
76,690 and 76,461 shares issued and outstanding, respectively
|
|
|
77
|
|
|
76
|
|
Additional paid-in capital
|
|
|
801,262
|
|
|
793,511
|
|
Retained earnings
|
|
|
138,845
|
|
|
83,328
|
|
Accumulated other comprehensive loss, net of taxes
|
|
|
(689)
|
|
|
(357)
|
|
Total stockholders' equity
|
|
|
939,495
|
|
|
876,558
|
|
Total liabilities and stockholders' equity
|
|
$
|
2,309,796
|
|
$
|
1,916,341
|
|
60 | ||
|
|
Year Ended
|
|
Year Ended
|
|
Year Ended
|
|
|||
|
|
December 31, 2013
|
|
December 31, 2012
|
|
December 31, 2011
|
|
|||
|
|
|
|
|
|
|
|
|
|
|
Revenue:
|
|
|
|
|
|
|
|
|
|
|
Services
|
|
$
|
292,092
|
|
$
|
273,491
|
|
$
|
262,322
|
|
Subscriber equipment
|
|
|
73,303
|
|
|
93,866
|
|
|
94,709
|
|
Engineering and support services
|
|
|
17,254
|
|
|
16,163
|
|
|
27,276
|
|
Total revenue
|
|
|
382,649
|
|
|
383,520
|
|
|
384,307
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
Cost of services (exclusive of depreciation and
amortization) |
|
|
59,346
|
|
|
60,937
|
|
|
71,181
|
|
Cost of subscriber equipment
|
|
|
52,062
|
|
|
53,285
|
|
|
54,113
|
|
Research and development
|
|
|
11,149
|
|
|
15,525
|
|
|
18,684
|
|
Selling, general and administrative
|
|
|
75,218
|
|
|
67,589
|
|
|
65,682
|
|
Depreciation and amortization
|
|
|
74,980
|
|
|
81,110
|
|
|
97,646
|
|
Total operating expenses
|
|
|
272,755
|
|
|
278,446
|
|
|
307,306
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
109,894
|
|
|
105,074
|
|
|
77,001
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
Interest income, net
|
|
|
2,276
|
|
|
1,072
|
|
|
1,200
|
|
Undrawn credit facility fees
|
|
|
(7,708)
|
|
|
(10,232)
|
|
|
(12,524)
|
|
Other income (expense), net
|
|
|
6,003
|
|
|
(896)
|
|
|
(96)
|
|
Total other income (expense)
|
|
|
571
|
|
|
(10,056)
|
|
|
(11,420)
|
|
Income before income taxes
|
|
|
110,465
|
|
|
95,018
|
|
|
65,581
|
|
Provision for income taxes
|
|
|
(47,948)
|
|
|
(30,387)
|
|
|
(24,546)
|
|
Net income
|
|
|
62,517
|
|
|
64,631
|
|
|
41,035
|
|
Series A Preferred Stock dividends
|
|
|
7,000
|
|
|
1,692
|
|
|
-
|
|
Net income attributable to common stockholders
|
|
$
|
55,517
|
|
$
|
62,939
|
|
$
|
41,035
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares outstanding - basic
|
|
|
76,909
|
|
|
74,239
|
|
|
72,164
|
|
Weighted average shares outstanding - diluted
|
|
|
87,511
|
|
|
78,182
|
|
|
73,559
|
|
Net income attributable to common stockholders per share -
basic |
|
$
|
0.72
|
|
$
|
0.85
|
|
$
|
0.57
|
|
Net income attributable to common stockholders per share -
diluted |
|
$
|
0.71
|
|
$
|
0.83
|
|
$
|
0.56
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income:
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
62,517
|
|
$
|
64,631
|
|
$
|
41,035
|
|
Foreign currency translation adjustments
|
|
|
(322)
|
|
|
(132)
|
|
|
(315)
|
|
Unrealized loss on marketable securities, net of tax
|
|
|
(10)
|
|
|
-
|
|
|
-
|
|
Comprehensive income
|
|
$
|
62,185
|
|
$
|
64,499
|
|
$
|
40,720
|
|
61 | ||
|
|
Series A
|
|
|
|
|
|
|
|
|
|
|
Accumulated
|
|
Accumulated
|
|
|
|
|
||||||
|
|
Convertible
|
|
|
|
|
|
|
|
Additional
|
|
Other
|
|
Retained
|
|
Total
|
|
||||||||
|
|
Preferred Stock
|
|
Common Stock
|
|
Paid-In
|
|
Comprehensive
|
|
Earnings
|
|
Stockholders'
|
|
||||||||||||
|
|
Shares
|
|
Amount
|
|
Shares
|
|
Amount
|
|
Capital
|
|
Income (Loss)
|
|
(Deficit)
|
|
Equity
|
|
||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2010
|
|
|
-
|
|
$
|
-
|
|
|
70,254
|
|
$
|
70
|
|
$
|
675,402
|
|
$
|
90
|
|
$
|
(20,646)
|
|
$
|
654,916
|
|
Stock-based compensation
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
6,341
|
|
|
-
|
|
|
-
|
|
|
6,341
|
|
Stock issued upon exchange of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
warrants
|
|
|
-
|
|
|
-
|
|
|
2,946
|
|
|
3
|
|
|
(2)
|
|
|
-
|
|
|
-
|
|
|
1
|
|
Stock issued upon exercise of stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
options
|
|
|
-
|
|
|
-
|
|
|
5
|
|
|
-
|
|
|
40
|
|
|
-
|
|
|
-
|
|
|
40
|
|
Net income
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
41,035
|
|
|
41,035
|
|
Cumulative translation adjustments
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(315)
|
|
|
-
|
|
|
(315)
|
|
Balance at December 31, 2011
|
|
|
-
|
|
|
-
|
|
|
73,205
|
|
|
73
|
|
|
681,781
|
|
|
(225)
|
|
|
20,389
|
|
|
702,018
|
|
Stock-based compensation
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
8,150
|
|
|
-
|
|
|
-
|
|
|
8,150
|
|
Issuance of Series A Convertible
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred Stock
|
|
|
1,000
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
96,499
|
|
|
-
|
|
|
-
|
|
|
96,499
|
|
Stock issued upon exercise of stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
warrants
|
|
|
-
|
|
|
-
|
|
|
1,302
|
|
|
1
|
|
|
9,113
|
|
|
-
|
|
|
-
|
|
|
9,114
|
|
Stock issued upon exchange of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
warrants and related transaction costs
|
|
|
-
|
|
|
-
|
|
|
1,949
|
|
|
2
|
|
|
(2,075)
|
|
|
-
|
|
|
-
|
|
|
(2,073)
|
|
Stock issued upon exercise of stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
options
|
|
|
-
|
|
|
-
|
|
|
5
|
|
|
-
|
|
|
43
|
|
|
-
|
|
|
-
|
|
|
43
|
|
Net income
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
64,631
|
|
|
64,631
|
|
Dividends on Series A Preferred Stock
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(1,692)
|
|
|
(1,692)
|
|
Cumulative translation adjustments
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(132)
|
|
|
-
|
|
|
(132)
|
|
Balance at December 31, 2012
|
|
|
1,000
|
|
|
-
|
|
|
76,461
|
|
|
76
|
|
|
793,511
|
|
|
(357)
|
|
|
83,328
|
|
|
876,558
|
|
Stock-based compensation
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
7,749
|
|
|
-
|
|
|
-
|
|
|
7,749
|
|
Stock issued upon exercise of stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
warrants
|
|
|
-
|
|
|
-
|
|
|
1
|
|
|
-
|
|
|
4
|
|
|
-
|
|
|
-
|
|
|
4
|
|
Stock issued upon exercise of stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
options
|
|
|
-
|
|
|
-
|
|
|
228
|
|
|
1
|
|
|
24
|
|
|
-
|
|
|
-
|
|
|
25
|
|
Stock withheld to cover employee taxes
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(26)
|
|
|
-
|
|
|
-
|
|
|
(26)
|
|
Net income
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
62,517
|
|
|
62,517
|
|
Dividends on Series A Preferred Stock
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(7,000)
|
|
|
(7,000)
|
|
Cumulative translation adjustments
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(322)
|
|
|
-
|
|
|
(322)
|
|
Unrealized loss on marketable securities,
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
net of tax
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(10)
|
|
|
-
|
|
|
(10)
|
|
Balance at December 31, 2013
|
|
|
1,000
|
|
$
|
-
|
|
|
76,690
|
|
$
|
77
|
|
$
|
801,262
|
|
$
|
(689)
|
|
$
|
138,845
|
|
$
|
939,495
|
|
62 | ||
|
|
Year Ended
|
|
Year Ended
|
|
Year Ended
|
|
|||
|
|
December 31, 2013
|
|
December 31, 2012
|
|
December 31, 2011
|
|
|||
|
|
|
|
|
|
|
|
|
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
62,517
|
|
$
|
64,631
|
|
$
|
41,035
|
|
Adjustments to reconcile net income to net cash
provided by operating activities: |
|
|
|
|
|
|
|
|
|
|
Non-cash items included in net income:
|
|
|
|
|
|
|
|
|
|
|
Deferred taxes
|
|
|
47,095
|
|
|
29,549
|
|
|
22,563
|
|
Depreciation and amortization
|
|
|
74,980
|
|
|
81,110
|
|
|
97,646
|
|
Stock-based compensation
|
|
|
6,715
|
|
|
7,332
|
|
|
5,895
|
|
Provision for doubtful accounts
|
|
|
(525)
|
|
|
722
|
|
|
-
|
|
Provision for obsolete inventory
|
|
|
1,479
|
|
|
-
|
|
|
-
|
|
Loss on equity method investment
|
|
|
3,332
|
|
|
826
|
|
|
-
|
|
Amortization of premiums on marketable securities
|
|
|
546
|
|
|
-
|
|
|
-
|
|
Realized loss on sale of marketable securities
|
|
|
82
|
|
|
-
|
|
|
-
|
|
Gain on disposal of property and equipment
|
|
|
-
|
|
|
-
|
|
|
(13)
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable
|
|
|
1,901
|
|
|
561
|
|
|
(7,140)
|
|
Inventory
|
|
|
(4,633)
|
|
|
(11,199)
|
|
|
1,577
|
|
Prepaid expenses and other current assets
|
|
|
(7,684)
|
|
|
(200)
|
|
|
363
|
|
Income tax receivable
|
|
|
3,617
|
|
|
28
|
|
|
6,773
|
|
Other assets
|
|
|
(4,328)
|
|
|
364
|
|
|
110
|
|
Accounts payable
|
|
|
(5,603)
|
|
|
464
|
|
|
454
|
|
Accrued expenses and other current liabilities
|
|
|
9,694
|
|
|
(6,400)
|
|
|
(2,417)
|
|
Deferred revenue
|
|
|
5,612
|
|
|
7,310
|
|
|
7,230
|
|
Accrued satellite and network operation expense, net
|
|
|
|
|
|
|
|
|
|
|
of current portion
|
|
|
(1,338)
|
|
|
(1,338)
|
|
|
(1,337)
|
|
Other long-term liabilities
|
|
|
(10,411)
|
|
|
263
|
|
|
10,722
|
|
Net cash provided by operating activities
|
|
|
183,048
|
|
|
174,023
|
|
|
183,461
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
|
Capital expenditures
|
|
|
(403,547)
|
|
|
(441,654)
|
|
|
(359,404)
|
|
Purchases of marketable securities
|
|
|
(126,408)
|
|
|
-
|
|
|
-
|
|
Sales and maturities of marketable securities
|
|
|
49,119
|
|
|
-
|
|
|
-
|
|
Proceeds from sale of property and equipment
|
|
|
-
|
|
|
-
|
|
|
67
|
|
Investment in equity method affiliate
|
|
|
(5,000)
|
|
|
(1,888)
|
|
|
-
|
|
Net cash used in investing activities
|
|
|
(485,836)
|
|
|
(443,542)
|
|
|
(359,337)
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
Borrowings under the Credit Facility
|
|
|
287,416
|
|
|
334,654
|
|
|
274,976
|
|
Payment of deferred financing fees
|
|
|
(18,716)
|
|
|
(22,168)
|
|
|
(33,450)
|
|
Change in restricted cash - Credit Facility
|
|
|
(26,990)
|
|
|
(27,079)
|
|
|
(27,034)
|
|
Payment of note payable
|
|
|
-
|
|
|
-
|
|
|
(22,223)
|
|
Proceeds from exercise of warrants
|
|
|
3
|
|
|
9,114
|
|
|
1
|
|
Proceeds from exercise of stock options
|
|
|
25
|
|
|
43
|
|
|
40
|
|
Tax payment upon settlement of stock awards
|
|
|
(26)
|
|
|
-
|
|
|
-
|
|
Payment of warrant exchange transaction costs
|
|
|
-
|
|
|
(2,073)
|
|
|
-
|
|
Proceeds from issuance of Series A Preferred
|
|
|
|
|
|
|
|
|
|
|
Stock, net of issuance costs
|
|
|
-
|
|
|
96,499
|
|
|
-
|
|
Dividends paid
|
|
|
(7,000)
|
|
|
(1,419)
|
|
|
-
|
|
Net cash provided by financing activities
|
|
|
234,712
|
|
|
387,571
|
|
|
192,310
|
|
|
|
|
|
|
|
|
|
|
|
|
Net increase (decrease) in cash and cash equivalents
|
|
|
(68,076)
|
|
|
118,052
|
|
|
16,434
|
|
Cash and cash equivalents, beginning of period
|
|
|
254,418
|
|
|
136,366
|
|
|
119,932
|
|
Cash and cash equivalents, end of period
|
|
$
|
186,342
|
|
$
|
254,418
|
|
$
|
136,366
|
|
63 | ||
|
|
Year Ended
|
|
Year Ended
|
|
Year Ended
|
|
|||
|
|
December 31, 2013
|
|
December 31, 2012
|
|
December 31, 2011
|
|
|||
Supplemental cash flow information:
|
|
|
|
|
|
|
|
|
|
|
Interest paid
|
|
$
|
11,255
|
|
$
|
6,971
|
|
$
|
4,528
|
|
Income taxes paid (refunded), net
|
|
$
|
(2,920)
|
|
$
|
348
|
|
$
|
(6,296)
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosure of non-cash investing activities:
|
|
|
|
|
|
|
|
|
|
|
Property and equipment received but not paid for yet
|
|
$
|
10,690
|
|
$
|
3,516
|
|
$
|
14,409
|
|
Interest capitalized but not paid
|
|
$
|
7,989
|
|
$
|
5,359
|
|
$
|
2,979
|
|
Capitalized paid-in-kind interest
|
|
$
|
25,715
|
|
$
|
16,059
|
|
$
|
7,012
|
|
Capitalized amortization of deferred financing costs
|
|
$
|
12,475
|
|
$
|
3,896
|
|
$
|
-
|
|
Stock-based compensation capitalized
|
|
$
|
1,034
|
|
$
|
819
|
|
$
|
446
|
|
Contribution of fixed assets to Aireon
|
|
$
|
-
|
|
$
|
1,353
|
|
$
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosure of non-cash financing activities:
|
|
|
|
|
|
|
|
|
|
|
Dividends accrued on Series A Preferred Stock
|
|
$
|
292
|
|
$
|
273
|
|
$
|
-
|
|
64 | ||
|
•
|
Level 1, defined as observable inputs such as quoted prices in active markets for identical assets or liabilities;
|
|
|
|
|
•
|
Level 2, defined as observable inputs other than Level 1 prices such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities; and
|
|
|
|
|
•
|
Level 3, defined as unobservable inputs in which little or no market data exists, therefore requiring an entity to develop its own assumptions.
|
65 | ||
66 | ||
|
|
Year Ended December 31,
|
|
|||||||
|
|
2013
|
|
2012
|
|
2011
|
|
|||
|
|
(In thousands)
|
|
|||||||
Capitalized interest
|
|
$
|
52,136
|
|
$
|
29,305
|
|
$
|
12,825
|
|
Interest expense
|
|
|
583
|
|
|
114
|
|
|
42
|
|
Total interest
|
|
$
|
52,719
|
|
$
|
29,419
|
|
$
|
12,867
|
|
|
|
2013
|
|
2012
|
|
||
|
|
(In thousands)
|
|
||||
Property and equipment, net
|
|
$
|
991
|
|
$
|
760
|
|
Inventory
|
|
|
43
|
|
|
60
|
|
Cost of subscriber equipment
|
|
|
32
|
|
|
157
|
|
Cost of services (exclusive of depreciation and amortization)
|
|
|
550
|
|
|
608
|
|
Research and development
|
|
|
132
|
|
|
209
|
|
Selling, general and administrative
|
|
|
6,001
|
|
|
6,356
|
|
Total stock-based compensation
|
|
$
|
7,749
|
|
$
|
8,150
|
|
67 | ||
Satellites
|
estimated useful life
|
Ground system
|
5-7 years
|
Equipment
|
3-5 years
|
Internally developed software and purchased software
|
3-7 years
|
Building
|
39 years
|
Building improvements
|
estimated useful life
|
Leasehold improvements
|
shorter of useful life or remaining lease term
|
68 | ||
69 | ||
70 | ||
|
|
2013
|
|
2012
|
|
||
|
|
(In thousands)
|
|
||||
Balance at beginning of the period
|
|
$
|
4,050
|
|
$
|
4,101
|
|
Provision
|
|
|
11,690
|
|
|
4,795
|
|
Utilization
|
|
|
(6,887)
|
|
|
(4,846)
|
|
Balance at end of the period
|
|
$
|
8,853
|
|
$
|
4,050
|
|
71 | ||
|
|
|
|
|
|
Recurring Fair
|
|
||
|
|
2013
|
|
2012
|
|
Value Measurement
|
|
||
|
|
(in thousands)
|
|
|
|
||||
Cash and cash equivalents:
|
|
|
|
|
|
|
|
|
|
Cash
|
|
$
|
86,074
|
|
$
|
166,326
|
|
|
|
Money market funds
|
|
|
88,769
|
|
|
88,092
|
|
Level 1
|
|
Commercial paper
|
|
|
11,499
|
|
|
-
|
|
Level 2
|
|
Total Cash and cash equivalents
|
|
$
|
186,342
|
|
$
|
254,418
|
|
|
|
|
|
|
|
Recurring Fair
|
|
|
|
|
2013
|
|
Value Measurement
|
|
|
|
|
(in thousands)
|
|
|
|
|
Marketable securities:
|
|
|
|
|
|
|
Fixed-income debt securities
|
|
$
|
57,032
|
|
Level 2
|
|
Commercial paper
|
|
|
19,615
|
|
Level 2
|
|
Total Marketable securities
|
|
$
|
76,647
|
|
|
|
|
|
Amortized
|
|
Gross Unrealized
|
|
Estimated
|
|
|||
|
|
Cost
|
|
Loss
|
|
Fair Value
|
|
|||
|
|
(in thousands)
|
|
|||||||
Fixed-income debt securities:
|
|
|
|
|
|
|
|
|
|
|
Mature within one year
|
|
$
|
3,004
|
|
$
|
-
|
|
$
|
3,004
|
|
Mature after one year and within three years
|
|
|
54,044
|
|
|
(16)
|
|
|
54,028
|
|
Commercial paper:
|
|
|
|
|
|
|
|
|
|
|
Mature within one year
|
|
|
19,615
|
|
|
-
|
|
|
19,615
|
|
Total
|
|
$
|
76,663
|
|
$
|
(16)
|
|
$
|
76,647
|
|
72 | ||
73 | ||
|
•
|
Tranche A $1,537,500,000 at a fixed rate of 4.96%; and
|
|
•
|
Tranche A fixed rate of 3.56%; and
|
74 | ||
At December 31,
|
|
Amount
|
|
|
|
|
(in millions)
|
|
|
2014
|
|
$
|
108
|
|
2015
|
|
|
135
|
|
2016
|
|
|
162
|
|
2017
|
|
|
189
|
|
|
⋅
|
an available cash balance of at least $25 million;
|
|
⋅
|
a debt-to-equity ratio, which is calculated as the ratio of total net debt to the aggregate of total net debt and total stockholders’ equity, of no more than 0.7 to 1, measured each June 30 and December 31;
|
|
⋅
|
specified maximum levels of annual capital expenditures (excluding expenditures on the construction of Iridium NEXT satellites) through the year ending December 31, 2024;
|
|
⋅
|
specified minimum consolidated operational earnings before interest, taxes, depreciation and amortization, or operational EBITDA, levels for the 12-month periods ending each December 31 and June 30 through June 30, 2017;
|
|
⋅
|
specified minimum cash flow requirements from customers who have hosted payloads on the Company’s satellites during the 12-month periods ending each December 31 and June 30, beginning December 31, 2014 and ending on June 30, 2017;
|
|
⋅
|
a debt service coverage ratio, measured during the repayment period, of not less than 1 to 1.5; and
|
|
⋅
|
specified maximum leverage levels during the repayment period that decline from a ratio of 4.75 to 1 for the twelve months ending June 30, 2017 to a ratio of 2.5 to 1 for the twelve months ending June 30, 2025.
|
75 | ||
76 | ||
|
|
2013
|
|
2012
|
|
||
|
|
(In thousands)
|
|
||||
Satellite system
|
|
$
|
337,677
|
|
$
|
337,677
|
|
Ground system
|
|
|
41,247
|
|
|
16,751
|
|
Equipment
|
|
|
25,019
|
|
|
22,272
|
|
Internally developed software and purchased software
|
|
|
68,141
|
|
|
56,750
|
|
Building and leasehold improvements
|
|
|
28,063
|
|
|
28,070
|
|
|
|
|
500,147
|
|
|
461,520
|
|
Less: accumulated depreciation
|
|
|
(296,716)
|
|
|
(240,186)
|
|
|
|
|
203,431
|
|
|
221,334
|
|
Land
|
|
|
8,037
|
|
|
8,037
|
|
Construction in process:
|
|
|
|
|
|
|
|
Iridium NEXT systems under construction
|
|
|
1,341,148
|
|
|
972,908
|
|
Other construction in process
|
|
|
22,963
|
|
|
8,414
|
|
Total property and equipment, net of accumulated depreciation
|
|
$
|
1,575,579
|
|
$
|
1,210,693
|
|
|
|
2013
|
|
2012
|
|
||
|
|
(In thousands)
|
|
||||
Internally developed software
|
|
$
|
17,582
|
|
$
|
7,390
|
|
Equipment
|
|
|
4,204
|
|
|
843
|
|
Ground system
|
|
|
1,177
|
|
|
181
|
|
Total other construction in process
|
|
$
|
22,963
|
|
$
|
8,414
|
|
|
|
December 31, 2013
|
|
|||||||||
|
|
Useful
|
|
Gross
|
|
Accumulated
|
|
Net
|
|
|||
|
|
Lives
|
|
Carrying Value
|
|
Amortization
|
|
Carrying Value
|
|
|||
|
|
(In thousands)
|
|
|||||||||
Indefinite life intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
Trade names
|
|
Indefinite
|
|
$
|
21,195
|
|
$
|
-
|
|
$
|
21,195
|
|
Spectrum and licenses
|
|
Indefinite
|
|
|
14,030
|
|
|
-
|
|
|
14,030
|
|
Total
|
|
|
|
|
35,225
|
|
|
-
|
|
|
35,225
|
|
Definite life intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
Customer relationships - government
|
|
5 years
|
|
|
20,355
|
|
|
(17,301)
|
|
|
3,054
|
|
Customer relationships - commercial
|
|
5 years
|
|
|
33,052
|
|
|
(28,094)
|
|
|
4,958
|
|
Core developed technology
|
|
5 years
|
|
|
4,842
|
|
|
(4,116)
|
|
|
726
|
|
Intellectual property
|
|
16.5 years (1)
|
|
|
16,439
|
|
|
(3,253)
|
|
|
13,186
|
|
Software
|
|
5 years
|
|
|
2,025
|
|
|
(1,722)
|
|
|
303
|
|
Total
|
|
|
|
|
76,713
|
|
|
(54,486)
|
|
|
22,227
|
|
Total intangible assets
|
|
|
|
$
|
111,938
|
|
$
|
(54,486)
|
|
$
|
57,452
|
|
77 | ||
|
|
December 31, 2012
|
|
|||||||||
|
|
Useful
|
|
Gross
|
|
Accumulated
|
|
Net
|
|
|||
|
|
Lives
|
|
Carrying Value
|
|
Amortization
|
|
Carrying Value
|
|
|||
|
|
(In thousands)
|
|
|||||||||
Indefinite life intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
Trade names
|
|
Indefinite
|
|
$
|
21,195
|
|
$
|
-
|
|
$
|
21,195
|
|
Spectrum and licenses
|
|
Indefinite
|
|
|
14,030
|
|
|
-
|
|
|
14,030
|
|
Total
|
|
|
|
|
35,225
|
|
|
-
|
|
|
35,225
|
|
Definite life intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
Customer relationships - government
|
|
5 years
|
|
|
20,355
|
|
|
(13,230)
|
|
|
7,125
|
|
Customer relationships - commercial
|
|
5 years
|
|
|
33,052
|
|
|
(21,484)
|
|
|
11,568
|
|
Core developed technology
|
|
5 years
|
|
|
4,842
|
|
|
(3,147)
|
|
|
1,695
|
|
Intellectual property
|
|
16.5 years (1)
|
|
|
16,439
|
|
|
(2,258)
|
|
|
14,181
|
|
Software
|
|
5 years
|
|
|
2,025
|
|
|
(1,317)
|
|
|
708
|
|
Total
|
|
|
|
|
76,713
|
|
|
(41,436)
|
|
|
35,277
|
|
Total intangible assets
|
|
|
|
$
|
111,938
|
|
$
|
(41,436)
|
|
$
|
70,502
|
|
(1)
|
|
Intellectual property is allocated over the estimated useful life of the existing satellite systems and Iridium NEXT, which averages to 16.5 years.
|
Year ending December 31,
|
|
Amount
|
|
|
|
|
(In thousands)
|
|
|
2014
|
|
$
|
10,036
|
|
2015
|
|
|
995
|
|
2016
|
|
|
995
|
|
2017
|
|
|
995
|
|
2018
|
|
|
995
|
|
Thereafter
|
|
|
8,211
|
|
Total estimated future amortization expense
|
|
$
|
22,227
|
|
78 | ||
79 | ||
|
|
Operating
|
|
|
Year ending December 31,
|
|
Leases
|
|
|
|
|
(In thousands)
|
|
|
2014
|
|
$
|
2,702
|
|
2015
|
|
|
2,867
|
|
2016
|
|
|
2,291
|
|
2017
|
|
|
2,239
|
|
2018
|
|
|
2,302
|
|
Thereafter
|
|
|
7,402
|
|
Total
|
|
$
|
19,803
|
|
|
|
Year Ended December 31,
|
|
|
||||||
|
|
2013
|
|
|
2012
|
|
|
2011
|
|
|
Expected volatility
|
|
41% - 42%
|
|
|
42% - 45%
|
|
|
40% - 45%
|
|
|
Expected term (years)
|
|
3.00 - 6.25
|
|
|
5.50 - 6.25
|
|
|
5.50 - 6.25
|
|
|
Expected dividends
|
|
0%
|
|
|
0%
|
|
|
0%
|
|
|
Risk free interest rate
|
|
0.58% - 1.93%
|
|
|
0.78% - 1.17%
|
|
|
1.16% - 2.65%
|
|
|
80 | ||
|
|
|
|
|
|
|
Weighted-
|
|
|
|
|
|
|
|
|
Weighted-
|
|
Average
|
|
|
|
|
|
|
|
|
|
Average
|
|
Remaining
|
|
Aggregate
|
|
||
|
|
|
|
Exercise Price
|
|
Contractual
|
|
Intrinsic
|
|
||
|
|
Shares
|
|
Per Share
|
|
Term (Years)
|
|
Value
|
|
||
|
|
(In thousands, except years and per share data)
|
|
||||||||
Options outstanding at January 1, 2013
|
|
5,431
|
|
$
|
8.30
|
|
|
|
|
|
|
Granted
|
|
1,339
|
|
$
|
6.31
|
|
|
|
|
|
|
Cancelled or expired
|
|
(340)
|
|
$
|
8.62
|
|
|
|
|
|
|
Exercised
|
|
(4)
|
|
$
|
6.54
|
|
|
|
|
|
|
Forfeited
|
|
(243)
|
|
$
|
7.31
|
|
|
|
|
|
|
Options outstanding at December 31, 2013
|
|
6,183
|
|
$
|
7.89
|
|
7.05
|
|
$
|
140
|
|
Options vested and exercisable at December 31, 2013
|
|
3,918
|
|
$
|
8.36
|
|
6.24
|
|
$
|
-
|
|
Options exercisable and expected to vest at December
31, 2013 |
|
6,142
|
|
$
|
7.90
|
|
7.04
|
|
$
|
136
|
|
81 | ||
|
|
|
|
Weighted-
|
|
|
|
|
|
|
Average
|
|
|
|
|
|
|
Grant Date
|
|
|
|
|
|
|
Fair Value
|
|
|
|
|
RSUs
|
|
Per RSU
|
|
|
|
|
(In thousands)
|
|
|
|
|
Outstanding at January 1, 2013
|
|
1,007
|
|
$
|
7.60
|
|
Granted
|
|
863
|
|
$
|
6.18
|
|
Forfeited
|
|
(310)
|
|
$
|
7.25
|
|
Released
|
|
(254)
|
|
$
|
7.56
|
|
Outstanding at December 31, 2013
|
|
1,306
|
|
$
|
6.76
|
|
Vested at December 31, 2013
|
|
346
|
|
|
|
|
|
|
|
|
Weighted-
|
|
|
|
|
|
|
Average
|
|
|
|
|
|
|
Grant Date
|
|
|
|
|
|
|
Fair Value
|
|
|
|
|
RSUs
|
|
Per RSU
|
|
|
|
|
(In thousands)
|
|
|
|
|
Non-vested at January 1, 2013
|
|
740
|
|
$
|
7.56
|
|
Granted
|
|
863
|
|
$
|
6.18
|
|
Vested
|
|
(333)
|
|
$
|
7.34
|
|
Forfeited
|
|
(310)
|
|
$
|
7.25
|
|
Non-vested at December 31, 2013
|
|
960
|
|
$
|
6.50
|
|
82 | ||
|
|
2013
|
|
2012
|
|
||
|
|
|
|
|
|
|
|
|
|
(In thousands)
|
|
||||
United States
|
|
$
|
118,011
|
|
$
|
94,017
|
|
Satellites in orbit
|
|
|
96,231
|
|
|
137,720
|
|
Iridium NEXT systems under construction
|
|
|
1,341,148
|
|
|
972,908
|
|
All others (1)
|
|
|
20,189
|
|
|
6,048
|
|
Total
|
|
$
|
1,575,579
|
|
$
|
1,210,693
|
|
|
|
2013
|
|
2012
|
|
|
2011
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
(In thousands)
|
|
|||||||
United States
|
|
$
|
175,054
|
|
$
|
178,145
|
|
$
|
176,043
|
|
Canada
|
|
|
49,541
|
|
|
53,279
|
|
|
52,419
|
|
United Kingdom
|
|
|
37,421
|
|
|
42,706
|
|
|
48,886
|
|
Other countries (1)
|
|
|
120,633
|
|
|
109,390
|
|
|
106,959
|
|
Total
|
|
$
|
382,649
|
|
$
|
383,520
|
|
$
|
384,307
|
|
|
|
Year Ended December 31,
|
|
|||||||
|
|
2013
|
|
2012
|
|
2011
|
|
|||
|
|
(In thousands)
|
|
|||||||
U.S. income
|
|
$
|
111,685
|
|
$
|
94,719
|
|
$
|
65,272
|
|
Foreign income (loss)
|
|
|
(1,220)
|
|
|
299
|
|
|
309
|
|
Total income before income taxes
|
|
$
|
110,465
|
|
$
|
95,018
|
|
$
|
65,581
|
|
83 | ||
|
|
Year Ended December 31,
|
|
|||||||
|
|
2013
|
|
2012
|
|
2011
|
|
|||
|
|
(In thousands)
|
|
|||||||
Current taxes:
|
|
|
|
|
|
|
|
|
|
|
Federal provision (benefit)
|
|
$
|
(12)
|
|
$
|
(47)
|
|
$
|
82
|
|
State provision
|
|
|
7
|
|
|
96
|
|
|
816
|
|
Foreign provision
|
|
|
723
|
|
|
849
|
|
|
567
|
|
Total current tax provision
|
|
|
718
|
|
|
898
|
|
|
1,465
|
|
Deferred taxes:
|
|
|
|
|
|
|
|
|
|
|
Federal provision
|
|
|
39,041
|
|
|
30,014
|
|
|
21,089
|
|
State provision (benefit)
|
|
|
8,240
|
|
|
(610)
|
|
|
1,995
|
|
Foreign provision (benefit)
|
|
|
(51)
|
|
|
85
|
|
|
(3)
|
|
Total deferred tax provision
|
|
|
47,230
|
|
|
29,489
|
|
|
23,081
|
|
Total income tax provision
|
|
$
|
47,948
|
|
$
|
30,387
|
|
$
|
24,546
|
|
|
|
Year Ended December 31,
|
|
|||||||
|
|
2013
|
|
2012
|
|
2011
|
|
|||
|
|
(In thousands)
|
|
|||||||
U.S. federal statutory tax rate
|
|
$
|
38,668
|
|
$
|
33,256
|
|
$
|
22,955
|
|
State taxes, net of federal benefit
|
|
|
9,048
|
|
|
3,837
|
|
|
2,561
|
|
State tax valuation allowance
|
|
|
3,151
|
|
|
1,943
|
|
|
-
|
|
Arizona tax law change
|
|
|
(3,975)
|
|
|
(9,524)
|
|
|
(3,126)
|
|
Other nondeductible expenses
|
|
|
1,185
|
|
|
414
|
|
|
854
|
|
Liability for uncertain tax positions
|
|
|
(146)
|
|
|
(45)
|
|
|
704
|
|
Tax credits and other adjustments
|
|
|
(849)
|
|
|
223
|
|
|
784
|
|
Foreign taxes and other items
|
|
|
866
|
|
|
283
|
|
|
(186)
|
|
Total income tax provision
|
|
$
|
47,948
|
|
$
|
30,387
|
|
$
|
24,546
|
|
84 | ||
|
|
As of December 31,
|
|
||||
|
|
2013
|
|
2012
|
|
||
|
|
(In thousands)
|
|
||||
Deferred tax assets
|
|
|
|
|
|
|
|
Long-term contracts
|
|
$
|
33,988
|
|
$
|
22,894
|
|
Deferred revenue
|
|
|
4,086
|
|
|
6,212
|
|
Federal, state and foreign net operating loss carryforwards
and tax credits |
|
|
133,190
|
|
|
122,948
|
|
Other
|
|
|
21,571
|
|
|
19,551
|
|
Total deferred tax assets
|
|
|
192,835
|
|
|
171,605
|
|
Valuation allowance
|
|
|
(6,567)
|
|
|
(2,200)
|
|
Net deferred tax assets
|
|
$
|
186,268
|
|
$
|
169,405
|
|
|
|
|
|
|
|
|
|
Deferred tax liabilities
|
|
|
|
|
|
|
|
Fixed assets and intangibles
|
|
$
|
(58,220)
|
|
$
|
(58,930)
|
|
Research and development expenditures
|
|
|
(318,340)
|
|
|
(254,312)
|
|
Other
|
|
|
(3,457)
|
|
|
(2,824)
|
|
Total deferred tax liabilities
|
|
$
|
(380,017)
|
|
$
|
(316,066)
|
|
|
|
|
|
|
|
|
|
Net deferred income tax liabilities
|
|
$
|
(193,749)
|
|
$
|
(146,661)
|
|
85 | ||
|
|
2013
|
|
2012
|
|
||
|
|
(In thousands)
|
|
||||
Balance at January 1,
|
|
$
|
1,405
|
|
$
|
1,450
|
|
Change attributable to tax positions taken in a prior period
|
|
|
54
|
|
|
38
|
|
Change attributable to tax positions taken in the current period
|
|
|
7
|
|
|
7
|
|
Decrease attributable to lapse of statute of limitations
|
|
|
(207)
|
|
|
(90)
|
|
Balance at December 31,
|
|
$
|
1,259
|
|
$
|
1,405
|
|
|
|
Year Ended December 31,
|
|
|||||||
|
|
2013
|
|
2012
|
|
2011
|
|
|||
|
|
|
|
|
|
|
|
|
|
|
|
|
(In thousands, except per share data)
|
|
|||||||
Numerator:
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common stockholders
|
|
$
|
55,517
|
|
$
|
62,939
|
|
$
|
41,035
|
|
Net income allocated to participating securities
|
|
|
(46)
|
|
|
(54)
|
|
|
(29)
|
|
Numerator for basic net income per share
|
|
|
55,471
|
|
|
62,885
|
|
|
41,006
|
|
Dividends on Series A Preferred Stock
|
|
|
7,000
|
|
|
1,692
|
|
|
-
|
|
Numerator for diluted net income per share
|
|
$
|
62,471
|
|
$
|
64,577
|
|
$
|
41,006
|
|
|
|
|
|
|
|
|
|
|
|
|
Denominator:
|
|
|
|
|
|
|
|
|
|
|
Denominator for basic net income per share -
weighted average outstanding common shares |
|
|
76,909
|
|
|
74,239
|
|
|
72,164
|
|
Dilutive effect of warrants
|
|
|
-
|
|
|
1,272
|
|
|
1,395
|
|
Dilutive effect of stock options
|
|
|
-
|
|
|
6
|
|
|
-
|
|
Dilutive effect of Series A Preferred Stock
|
|
|
10,602
|
|
|
2,665
|
|
|
-
|
|
Denominator for diluted net income per share
|
|
|
87,511
|
|
|
78,182
|
|
|
73,559
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per share - basic
|
|
$
|
0.72
|
|
$
|
0.85
|
|
$
|
0.57
|
|
Net income per share - diluted
|
|
$
|
0.71
|
|
$
|
0.83
|
|
$
|
0.56
|
|
86 | ||
|
|
Quarter Ended
|
|
||||||||||
|
|
March 31,
|
|
June 30,
|
|
September 30,
|
|
December 31,
|
|
||||
|
|
2013
|
|
2013
|
|
2013
|
|
2013
|
|
||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(In thousands, except per share data)
|
|
||||||||||
Revenue
|
|
$
|
89,189
|
|
$
|
94,684
|
|
$
|
100,569
|
|
$
|
98,207
|
|
Operating income
|
|
$
|
25,338
|
|
$
|
28,848
|
|
$
|
29,451
|
|
$
|
26,257
|
|
Net income
|
|
$
|
14,934
|
|
$
|
15,413
|
|
$
|
16,585
|
|
$
|
15,585
|
|
Net income per common share - basic
|
|
$
|
0.17
|
|
$
|
0.18
|
|
$
|
0.19
|
|
$
|
0.18
|
|
Net income per common share -diluted
|
|
$
|
0.17
|
|
$
|
0.18
|
|
$
|
0.19
|
|
$
|
0.18
|
|
|
|
Quarter Ended
|
|
||||||||||
|
|
March 31,
|
|
June 30,
|
|
September 30,
|
|
December 31,
|
|
||||
|
|
2012
|
|
2012
|
|
2012
|
|
2012
|
|
||||
|
|
(In thousands, except per share data)
|
|
||||||||||
Revenue
|
|
$
|
93,474
|
|
$
|
97,321
|
|
$
|
100,441
|
|
$
|
92,284
|
|
Operating income
|
|
$
|
14,088
|
|
$
|
28,274
|
|
$
|
31,688
|
|
$
|
31,024
|
|
Net income
|
|
$
|
12,418
|
|
$
|
17,663
|
|
$
|
17,839
|
|
$
|
16,711
|
|
Net income per common share - basic
|
|
$
|
0.17
|
|
$
|
0.24
|
|
$
|
0.24
|
|
$
|
0.20
|
|
Net income per common share -diluted
|
|
$
|
0.16
|
|
$
|
0.23
|
|
$
|
0.23
|
|
$
|
0.19
|
|
87 | ||
Item 9. | Changes in and Disagreements with Accountants on Accounting and Financial Disclosure |
Item 9A. | Controls and Procedures |
• |
Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of our company;
|
|
|
• |
Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of our company; and
|
|
|
• | Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our company’s assets that could have a material effect on the financial statements. |
88 | ||
89 | ||
90 | ||
Item 9B. | Other Information |
Item 10. | Directors, Executive Officers and Corporate Governance |
Item 11. | Executive Compensation |
Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
Item 13. | Certain Relationships and Related Transactions, and Director Independence |
Item 14. | Principal Accountant Fees and Services |
Item 15. | Exhibits and Financial Statement Schedules |
Iridium Communications Inc.:
|
|
|
|
Report of Independent Registered Public Accounting Firm
|
|
|
Consolidated Balance Sheets
|
|
|
Consolidated Statements of Operations and Comprehensive Income
|
|
|
Consolidated Statements of Changes in Stockholders’ Equity
|
|
|
Consolidated Statements of Cash Flows
|
|
|
Notes to Consolidated Financial Statements
|
|
91 | ||
92 | ||
|
IRIDIUM COMMUNICATIONS INC.
|
|
|
|
|
Date: March 4, 2014
|
By:
|
/s/ Thomas J. Fitzpatrick
|
|
|
Thomas J. Fitzpatrick
Chief Financial Officer
|
Name
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Matthew J. Desch
|
|
Chief Executive Officer and Director
|
|
March 4, 2014
|
Matthew J. Desch
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
|
/s/ Thomas J. Fitzpatrick
|
|
Chief Financial Officer, Chief Administrative
|
|
March 4, 2014
|
Thomas J. Fitzpatrick
|
|
Officer and Director(Principal Financial Officer)
|
|
|
|
|
|
|
|
/s/ Richard P. Nyren
|
|
Vice President and Corporate Controller
|
|
March 4, 2014
|
Richard P. Nyren
|
|
(Principal Accounting Officer)
|
|
|
|
|
|
|
|
/s/ Robert H. Niehaus
|
|
Director and Chairman of the Board
|
|
March 4, 2014
|
Robert H. Niehaus
|
|
|
|
|
|
|
|
|
|
/s/ J. Darrel Barros
|
|
Director
|
|
March 4, 2014
|
J. Darrel Barros
|
|
|
|
|
|
|
|
|
|
/s/ Thomas C. Canfield
|
|
Director
|
|
March 4, 2014
|
Thomas C. Canfield
|
|
|
|
|
|
|
|
|
|
/s/ Peter M. Dawkins
|
|
Director
|
|
March 4, 2014
|
Peter M. Dawkins
|
|
|
|
|
|
|
|
|
|
/s/ Alvin B. Krongard
|
|
Director
|
|
March 4, 2014
|
Alvin B. Krongard
|
|
|
|
|
|
|
|
|
|
/s/ Eric T. Olson
|
|
Director
|
|
March 4, 2014
|
Eric T. Olson
|
|
|
|
|
|
|
|
|
|
/s/ Steven B. Pfeiffer
|
|
Director
|
|
March 4, 2014
|
Steven B. Pfeiffer
|
|
|
|
|
|
|
|
|
|
/s/ Parker W. Rush
|
|
Director
|
|
March 4, 2014
|
Parker W. Rush
|
|
|
|
|
|
|
|
|
|
/s/ S. Scott Smith
|
|
Director
|
|
March 4, 2014
|
S. Scott Smith
|
|
|
|
|
|
|
|
|
|
93 | ||
Exhibit
No. |
|
Document
|
|
|
|
3.1
|
|
Amended and Restated Certificate of Incorporation dated September 29, 2009, incorporated herein by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed with the SEC on September 29, 2009.
|
|
|
|
3.2
|
|
Certificate of Designations of Iridium Communications Inc. filed on October 3, 2012 with the Secretary of State of the State of Delaware designating the preferences, limitations, voting powers and relative rights of the 7% Series A Cumulative Perpetual Convertible Preferred Stock, incorporated herein by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed with the SEC on October 3, 2012.
|
|
|
|
3.3
|
|
Amended and Restated Bylaws, incorporated herein by reference to Exhibit 3.2 of the Registrant’s Current Report on Form 8-K filed with the SEC on September 29, 2009.
|
|
|
|
4.1
|
|
Specimen Common Stock Certificate, incorporated herein by reference to Exhibit 4.2 of the Registrant’s Registration Statement on Form S-1 (Registration No. 333-147722) filed with the SEC on February 4, 2008.
|
|
|
|
4.2
|
|
Amended and Restated Warrant Agreement between the Registrant and American Stock Transfer & Trust Company, incorporated herein by reference to Exhibit 4.3 of the Registrant’s Current Report on Form 8-K filed on February 26, 2008.
|
|
|
|
4.3
|
|
Warrant Agreement for $11.50 Warrants between the Company and American Stock Transfer & Trust Company, incorporated herein by reference to Exhibit 4.4 of the Registrant’s Current Report on Form 8-K filed with the SEC on September 29, 2009.
|
|
|
|
4.4
|
|
Specimen Warrant Certificate for $11.50 Warrants, incorporated herein by reference to Exhibit 4.5 of the Registrant’s Current Report on Form 8-K filed with the SEC on September 29, 2009.
|
|
|
|
10.1
|
|
Supplemental Agreement dated as of August 1, 2012 between Iridium Satellite LLC and Société Générale, as COFACE Agent, amending and restating the COFACE Facility Agreement among Iridium Satellite LLC, the Registrant, Iridium Holdings LLC, SE Licensing LLC, Iridium Carrier Holdings LLC, Iridium Carrier Services LLC, Syncom-Iridium Holdings Corp., Iridium Constellation LLC and Iridium Government Services LLC; Deutsche Bank AG (Paris Branch), Banco Santander SA, Société Générale, Natixis, Mediobanca International (Luxembourg) S.A., BNP Paribas, Crédit Industriel et Commercial, Intesa Sanpaolo S.p.A. (Paris Branch) and Unicredit Bank Austria AG; Deutsche Bank Trust Company Americas as the security agent and U.S. collateral agent; and Société Générale as the COFACE agent, dated as of October 4, 2010, incorporated herein by reference to Exhibit 10.5 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2012.
|
|
|
|
10.2
|
|
Amendment, dated as of July 26, 2013, to COFACE Facility Agreement, dated as of October 4, 2010, by and among Iridium Communications Inc., Iridium Satellite LLC, the other Obligors party thereto, the Lenders party thereto, the COFACE Agent and Deutsche Bank Trust Company Americas, as Security Agent and U.S. Collateral Agent, as amended and restated by the Supplemental Agreement dated as of August 1, 2012, incorporated herein by reference to Exhibit 10.1 of the Registrant’s Quarterly Report Form 10-Q for filed with the SEC on October 31, 2013.
|
|
|
|
10.3
|
|
Amendment, dated as of October 30, 2013, to COFACE Facility Agreement, dated as of October 4, 2010, by and among Iridium Communications Inc., Iridium Satellite LLC, the other Obligors party thereto, the Lenders party thereto, the COFACE Agent and Deutsche Bank Trust Company Americas, as Security Agent and U.S. Collateral Agent, as amended and restated by the Supplemental Agreement dated as of August 1, 2012.
|
|
|
|
10.4
|
|
Security Agreement, dated as of October 13, 2010, between the Registrant, Iridium Satellite LLC, Iridium Holdings LLC, Iridium Carrier Holdings LLC, Iridium Carrier Services LLC, SE Licensing LLC, Iridium Government Services LLC, Iridium Constellation LLC, Syncom-Iridium Holdings Corp. and Deutsche Bank Trust Company Americas, acting as Security Agent, incorporated by reference to Exhibit 10.2 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
|
|
|
10.5
|
|
Pledge Agreement, dated as of October 13, 2010, between the Registrant, Syncom-Iridium Holdings Corp., Iridium Holdings LLC, Iridium Carrier Holdings LLC, Iridium Satellite LLC, Iridium Constellation LLC and Deutsche Bank Trust Company Americas, acting as Security Agent, incorporated by reference to Exhibit 10.3 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
|
|
|
10.6
|
|
Stock Pledge Agreement, dated as of October 13, 2010, between the Registrant and Deutsche Bank Trust Company Americas, acting as Security Agent, incorporated by reference to Exhibit 10.4 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
94 | ||
Exhibit
No. |
|
Document
|
|
|
|
10.7
|
|
Amended and Restated Limited Liability Company Agreement of Aireon LLC, between Aireon LLC, Iridium Satellite LLC, NAV CANADA and NAV CANADA Satellite, Inc., dated as of November 19, 2012, incorporated by reference to Exhibit 10.5 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 5, 2013.
|
|
|
|
10.8
|
|
Amendment No. 1 to Amended and Restated Limited Liability Company Agreement of Aireon LLC, between Aireon LLC, Iridium Satellite LLC, NAV CANADA and NAV CANADA Satellite, Inc., dated as of June 27, 2013, incorporated herein by reference to Exhibit 10.1 of the Registrant’s Quarterly Report Form 10-Q for filed with the SEC on August 1, 2013.
|
|
|
|
10.9
|
|
Subscription Agreement for Preferred Interests between Aireon LLC and Enav S.p.A., dated as of December 20, 2013.
|
|
|
|
10.10
|
|
Subscription Agreement for Preferred Interests between Aireon LLC and Naviair, dated as of December 20, 2013.
|
|
|
|
10.11
|
|
Subscription Agreement for Preferred Interests between Aireon LLC and Irish Aviation Authority Limited, dated as of December 20, 2013.
|
|
|
|
10.12
|
|
Amended and Restated Subscription Agreement for Preferred Interests between Aireon LLC and NAV CANADA Satellite, Inc., dated as of December 20, 2013.
|
|
|
|
10.13
|
|
Settlement Agreement between Iridium Holdings LLC, Iridium Satellite LLC, the Registrant and Motorola, Inc., dated as of September 30, 2010, incorporated by reference to Exhibit 10.5 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
|
|
|
10.14
|
|
Security Agreement, dated as of September 30, 2010, between Iridium Satellite LLC and Deutsche Bank Trust Company Americas, acting as Collateral Agent, incorporated by reference to Exhibit C to Exhibit 10.5 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
|
|
|
10.15
|
|
Guaranty, dated as of September 30, 2010, by Iridium Holdings LLC and the Registrant in favor of Motorola, Inc., incorporated by reference to Exhibit 10.8 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
|
|
|
10.16
|
|
Amended and Restated Transition Services, Products and Asset Agreement, between Iridium Satellite LLC, Iridium Holdings LLC and Motorola, Inc., dated as of September 30, 2010, incorporated by reference to Exhibit 10.9 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
|
|
|
10.17
|
|
Amendment No. 1 to Amended and Restated Transition Services, Products and Asset Agreement, between Iridium Satellite LLC, Iridium Holdings LLC and Motorola, Inc., dated as of December 30, 2010, incorporated by reference to Exhibit 10.10 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
|
|
|
10.18
|
|
System Intellectual Property Rights Amendment and Agreement, between Iridium Satellite LLC and Motorola, Inc., dated as of September 30, 2010, incorporated by reference to Exhibit 10.11 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
|
|
|
10.19
|
|
Supplemental Subscriber Equipment Technology Amendment and Agreement, between Iridium Satellite LLC and Motorola, Inc., dated as of September 30, 2010, incorporated by reference to Exhibit 10.12 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
|
|
|
10.20
|
|
Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated June 1, 2010, incorporated by reference to Annex 1 to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q/A filed with the SEC on October 29, 2010.
|
|
|
|
10.21
|
|
Amendment No. 1 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated August 6, 2010, incorporated by reference to Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q/A filed with the SEC on January 14, 2011.
|
|
|
|
10.22
|
|
Amendment No. 2 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated September 30, 2010, incorporated by reference to Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 9, 2010.
|
|
|
|
10.23
|
|
Amendment No. 3 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated October 25, 2010, incorporated by reference to Exhibit 10.18 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
|
|
|
10.24
|
|
Amendment No. 4 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated as of April 29, 2011, incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on August 8, 2011.
|
95 | ||
Exhibit
No. |
|
Document
|
|
|
|
10.25
|
|
Amendment No. 5 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated September 12, 2011, incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 8, 2011.
|
|
|
|
10.26
|
|
Amendment No. 6 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated October 24, 2011, incorporated by reference to Exhibit 10.22 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 6, 2012.
|
|
|
|
10.27
|
|
Amendment No. 7 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated March 12, 2012, incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on May 3, 2012.
|
|
|
|
10.28
|
|
Amendment No. 8 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated March 13, 2012, incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on May 3, 2012.
|
|
|
|
10.29
|
|
Amendment No. 9 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated June 19, 2012, incorporated by reference to Exhibit 10.1 to the Registrant’s Annual Report on Form 10-Q filed with the SEC on August 2, 2012.
|
|
|
|
10.30
|
|
Amendment No. 10 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated June 19, 2012, incorporated by reference to Exhibit 10.2 to the Registrant’s Annual Report on Form 10-Q filed with the SEC on August 2, 2012.
|
|
|
|
10.31
|
|
Amendment No. 11 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated July 3, 2012, incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2012.
|
|
|
|
10.32
|
|
Amendment No. 12 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated July 6, 2012, incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2012.
|
|
|
|
10.33
|
|
Amendment No. 13 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated October 25, 2012, incorporated by reference to Exhibit 10.26 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 5, 2013.
|
|
|
|
10.34
|
|
Amendment No. 14 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated November 8, 2012, incorporated by reference to Exhibit 10.27 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 5, 2013.
|
|
|
|
10.35
|
|
Amendment No. 15 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated June 11, 2013, incorporated herein by reference to Exhibit 10.2 of the Registrant’s Quarterly Report Form 10-Q for filed with the SEC on October 31, 2013.
|
|
|
|
10.36
|
|
Amendment No. 16 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated July 24, 2013, incorporated herein by reference to Exhibit 10.3 of the Registrant’s Quarterly Report Form 10-Q for filed with the SEC on October 31, 2013.
|
|
|
|
10.37
|
|
Amendment No. 17 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated August 20, 2013, incorporated herein by reference to Exhibit 10.4 of the Registrant’s Quarterly Report Form 10-Q for filed with the SEC on October 31, 2013.
|
|
|
|
10.38
|
|
Amendment No. 18 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated October 21, 2013.
|
|
|
|
10.39
|
|
Amendment No. 19 to the Full Scale System Development Contract No. IS-10-021 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, dated October 29, 2013.
|
|
|
|
10.40
|
|
Contract for Launch Services No. IS-10-008 between Iridium Satellite LLC and Space Exploration Technologies Corp., dated March 19, 2010, incorporated by reference to Exhibit 10.5 to the Registrant’s Quarterly Report on Form 10-Q/A filed with the SEC on March 29, 2011.
|
|
|
|
10.41
|
|
Amendment No. 1 to the Contract for Launch Services No. IS-10-008 between Iridium Satellite LLC and Space Exploration Technologies Corp., dated September 17, 2010, incorporated by reference to Exhibit 10.6 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 9, 2010.
|
96 | ||
Exhibit
No. |
|
Document
|
|
|
|
10.42
|
|
Amendment No. 2 to the Contract for Launch Services No. IS-10-008 between Iridium Satellite LLC and Space Exploration Technologies Corp., effective as of August 1, 2012, incorporated by reference to Exhibit 10.6 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2012.
|
|
|
|
10.43
|
|
Amendment No. 3 to the Contract for Launch Services No. IS-10-008 between Iridium Satellite LLC and Space Exploration Technologies Corp., dated as of May 9, 2013, incorporated herein by reference to Exhibit 10.5 of the Registrant’s Quarterly Report Form 10-Q for filed with the SEC on October 31, 2013.
|
|
|
|
10.44
|
|
Contract for Launch Services No. IS-11-032 between Iridium Satellite LLC and International Space Company Kosmotras, dated as of June 14, 2011, incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on August 8, 2011.
|
|
|
|
10.45
|
|
Amendment No. 1 to Contract for Launch Services No. IS-11-032 between Iridium Satellite LLC and International Space Company Kosmotras, dated as of September 25, 2012 and effective as of June 13, 2013, incorporated herein by reference to Exhibit 10.2 of the Registrant’s Quarterly Report Form 10-Q for filed with the SEC on August 1, 2013.
|
|
|
|
10.46
|
|
Amendment No. 2 to Contract for Launch Services No. IS-11-032 between Iridium Satellite LLC and International Space Company Kosmotras, dated as of April 15, 2013, incorporated herein by reference to Exhibit 10.3 of the Registrant’s Quarterly Report Form 10-Q for filed with the SEC on August 1, 2013.
|
|
|
|
10.47
|
|
Amendment No. 3 to Contract for Launch Services No. IS-11-032 between Iridium Satellite LLC and International Space Company Kosmotras, dated as of June 13, 2013, incorporated herein by reference to Exhibit 10.4 of the Registrant’s Quarterly Report Form 10-Q for filed with the SEC on August 1, 2013.
|
|
|
|
10.48
|
|
Products and Services Agreement No. AIR-12-001 between Aireon LLC and Harris Corporation Government Communications Systems Division, dated as of June 19, 2012, incorporated by reference to Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q/A filed with the SEC on September 12, 2012.
|
|
|
|
10.49
|
|
Amendment No. 1 to the Products and Services Agreement No. AIR-12-001 between Aireon LLC and Harris Corporation Government Communications Systems Division, dated as of July 31, 2012, incorporated by reference to Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2012.
|
|
|
|
10.50
|
|
Amendment No. 2 to the Products and Services Agreement No. AIR-12-001 between Aireon LLC and Harris Corporation Government Communications Systems Division, dated as of September 4, 2012, incorporated by reference to Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2012.
|
|
|
|
10.51
|
|
Amendment No. 3 to the Products and Services Agreement No. AIR-12-001 between Aireon LLC and Harris Corporation Government Communications Systems Division, dated as of March 18, 2013, incorporated herein by reference to Exhibit 10.3 of the Registrant’s Current Report on Form 10-Q filed with the SEC on May 2, 2013.
|
|
|
|
10.52
|
|
Iridium NEXT Support Services Agreement No. IS-10-019, by and between Iridium Satellite LLC and The Boeing Company for Support Services for Iridium NEXT, dated as of May 28, 2010, incorporated by reference to Exhibit 10.9 to the Registrant’s Quarterly Report on Form 10-Q/A filed with the SEC on March 29, 2011.
|
|
|
|
10.53
|
|
Indemnification Contract, dated December 5, 2000, among Iridium Satellite LLC, The Boeing Company, Motorola, Inc. and the United States, incorporated herein by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed with the SEC on September 29, 2009.
|
|
|
|
10.54
|
|
Terms and Conditions for De-Orbit Postponement Modification for Contract DCA100-01-C-3001, by and between Iridium Satellite LLC, The Boeing Company and the United States Government, dated September 7, 2010, incorporated herein by reference to Exhibit 10.7 of the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 9, 2010.
|
|
|
|
10.55
|
|
Intellectual Property Rights Agreement, dated December 11, 2000, among Motorola Inc. and Iridium Satellite LLC, incorporated herein by reference to Exhibit 10.3 of the Registrant’s Current Report on Form 8-K filed with the SEC on September 29, 2009.
|
|
|
|
10.56
|
|
Subscriber Equipment Technology Agreement (Design), dated as of September 30, 2002, by and among Motorola Inc. and SE Licensing LLC, incorporated herein by reference to Exhibit 10.4 of the Registrant’s Current Report on Form 8-K filed with the SEC on September 29, 2009.
|
|
|
|
10.57
|
|
Subscriber Equipment Technology Agreement (Manufacturing), dated as of September 30, 2002, by and among Motorola Inc. and SE Licensing LLC, incorporated herein by reference to Exhibit 10.5 of the Registrant’s Current Report on Form 8-K filed with the SEC on September 29, 2009.
|
97 | ||
Exhibit
No. |
|
Document
|
|
|
|
10.58
|
|
Amended and Restated Contract Boeing No. BSC-2000-001 between Iridium Constellation LLC and The Boeing Company for Transition, Operations and Maintenance, Engineering Services, and Re-Orbit of the Iridium Communications System, dated as of May 28, 2010, incorporated herein by reference to Exhibit 10.8 of the Registrant’s Quarterly Report on Form 10-Q/A filed with the SEC on March 29, 2011.
|
|
|
|
10.59
|
|
Contract for Enhanced Mobile Satellite Services between Iridium Satellite LLC and the Defense Information Systems Agency, effective October 22, 2013.
|
|
|
|
10.60
|
|
Form of Registration Rights Agreement, incorporated by reference to Annex D of the Registrant’s Proxy Statement filed with the SEC on August 28, 2009.
|
|
|
|
10.61
|
|
Amendment No. 1 to Registration Rights Agreement, dated as of March 29, 2011, by and among Iridium Communications Inc. and the parties listed on the signature pages thereto, incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K, filed with the SEC on March 30, 2011.
|
|
|
|
10.62*
|
|
Amended and Restated Employment Agreement, dated as of March 30, 2011, by and between the Registrant and Matthew J. Desch, incorporated herein by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on April 5, 2011.
|
|
|
|
10.63*
|
|
Employment Agreement, dated as of March 31, 2010, by and between the Registrant and Thomas J. Fitzpatrick, incorporated herein by reference to Exhibit 10.1 of the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on May 10, 2010.
|
|
|
|
10.64*
|
|
Amendment to Employment Agreement by and between the Registrant and Thomas J. Fitzpatrick, dated as of December 31, 2010, incorporated by reference to Exhibit 10.34 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
|
|
|
10.65*
|
|
Employment Agreement between the Registrant and S. Scott Smith, dated as of March 2010, incorporated by reference to Exhibit 10.39 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 6, 2012.
|
|
|
|
10.66*
|
|
Amendment to Employment Agreement between the Registrant and S. Scott Smith, dated as of December 31, 2010, incorporated by reference to Exhibit 10.40 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 6, 2012.
|
|
|
|
10.67*
|
|
Employment Agreement between the Registrant and John Roddy, dated as of December 31, 2010, incorporated herein by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed with the SEC on January 6, 2011.
|
|
|
|
10.68*
|
|
Separation Agreement between the Registrant and John Roddy, dated as of November 7, 2013.
|
|
|
|
10.69*
|
|
Employment Agreement between the Registrant and Bryan J. Hartin, dated as of December 10, 2012.
|
|
|
|
10.70*
|
|
Employment Agreement between the Registrant and Thomas D. Hickey, dated as of April 29, 2011.
|
|
|
|
10.71*
|
|
2009 Iridium Communications Inc. Stock Incentive Plan, incorporated by reference to Annex E of the Registrant’s Proxy Statement filed with the SEC on August 28, 2009.
|
|
|
|
10.72
|
|
Form of Indemnity Agreement between the Registrant and each of its directors and officers, incorporated by reference to Exhibit 10.5 to the Registrant’s Form S-1/A filed with the SEC on February 4, 2008.
|
|
|
|
10.73*
|
|
Form of Stock Option Award Agreement for use in connection with the 2009 Iridium Communications Inc. Stock Incentive Plan, incorporated by reference to Exhibit 10.42 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
|
|
|
10.74*
|
|
Form of Restricted Stock Unit Agreement for use in connection with the 2009 Iridium Communications Inc. Stock Incentive Plan, incorporated by reference to Exhibit 10.48 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 6, 2012.
|
|
|
|
10.75*
|
|
Performance Share Program established under the Iridium Communications Inc. 2012 Equity Incentive Plan, incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on March 3, 2014.
|
|
|
|
10.76*
|
|
Form of Performance Share Award Grant Notice and Performance Share Award Agreement for use in connection with the Performance Share Program established under the Iridium Communications Inc. 2012 Equity Incentive Plan, incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on March 3, 2014.
|
98 | ||
Exhibit
No. |
|
Document
|
|||
|
|
|
|||
10.77*
|
|
Form of Stock Option Agreement for Non-Employee Directors for use in connection with the 2009 Iridium Communications Inc. Stock Incentive Plan, incorporated by reference to Exhibit 10.46 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
|||
|
|
|
|||
10.78*
|
|
Form of Restricted Stock Award Agreement for Non-Employee Directors for use in connection with the 2009 Iridium Communications Inc. Stock Incentive Plan, incorporated by reference to Exhibit 10.47 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
|||
|
|
|
|||
10.79*
|
|
Form of Restricted Stock Unit Agreement for Non-Employee Directors for use in connection with the 2009 Iridium Communications Inc. Stock Incentive Plan, incorporated by reference to Exhibit 10.48 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 7, 2011.
|
|||
|
|
|
|||
10.80*
|
|
Iridium Communications Inc. 2012 Equity Incentive Plan, incorporated by reference to Appendix A to the Registrant’s Proxy Statement filed with the SEC on April 10, 2012.
|
|||
|
|
|
|||
10.81*
|
|
Forms of Stock Option Grant Notice and Stock Option Agreement for use in connection with the Iridium Communications Inc. 2012 Equity Incentive Plan, incorporated by reference to Exhibit 99.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on May 23, 2012.
|
|||
|
|
|
|||
10.82*
|
|
Forms of Restricted Stock Unit Grant Notice and Restricted Stock Unit Agreement for use in connection with the Iridium Communications Inc. 2012 Equity Incentive Plan, incorporated by reference to Exhibit 99.3 to the Registrant’s Current Report on Form 8-K filed with the SEC on May 23, 2012.
|
|||
|
|
|
|||
10.83*
|
|
Non-Employee Director Compensation Plan, incorporated herein by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed with the SEC on December 22, 2009.
|
|||
|
|
|
|||
10.84*
|
|
Iridium Communications Inc. 2013 Executive Cash Performance Bonus Plan, incorporated herein by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed with the SEC on March 19, 2013.
|
|||
|
|
|
|||
10.85*
|
|
Aireon LLC 2013 Cash Performance Bonus Plan, incorporated herein by reference to Exhibit 10.2 of the Registrant’s Current Report on Form 8-K filed with the SEC on March 19, 2013.
|
|||
|
|
|
|||
21.1
|
|
List of Subsidiaries.
|
|||
|
|
|
|||
23.1
|
|
Consent of Ernst & Young LLP, independent registered public accounting firm.
|
|||
|
|
|
|||
31.1
|
|
Certification of Chief Executive Officer pursuant to Section 302 of The Sarbanes-Oxley Act of 2002.
|
|||
|
|
|
|||
31.2
|
|
Certification of Chief Financial Officer pursuant to Section 302 of The Sarbanes-Oxley Act of 2002.
|
|||
|
|
|
|||
32.1
|
|
Certification of Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of The Sarbanes-Oxley Act of 2002.
|
|||
|
|
|
|||
101.INS
|
|
XBRL Instance Document
|
|||
|
|
|
|||
101.SCH
|
|
XBRL Taxonomy Extension Schema
|
|||
|
|
|
|||
101.CAL
|
|
XBRL Taxonomy Extension Calculation Linkbase
|
|||
|
|
|
|||
101.DEF
|
|
XBRL Taxonomy Extension Definition Linkbase
|
|||
|
|
|
|||
101.LAB
|
|
XBRL Taxonomy Extension Label Linkbase
|
|||
|
|
|
|||
101.PRE
|
|
XBRL Taxonomy Extension Presentation Linkbase
|
|||
|
|
|
|||
|
Confidential treatment has been granted for certain portions omitted from this exhibit pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Confidential portions of this exhibit have been separately filed with the Securities and Exchange Commission.
|
||||
|
Confidential treatment has been requested for certain portions omitted from this exhibit pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Confidential portions of this exhibit have been separately filed with the Securities and Exchange Commission.
|
||||
*
|
Denotes compensatory plan, contract or arrangement.
|
||||
99 | ||
EXECUTION VERSION
THIS AMENDMENT TO THE COFACE FACILITY AGREEMENT (this “Amendment”), dated as of 30 October 2013 (the “Effective Date”), is made by and among IRIDIUM COMMUNICATIONS INC., a Delaware corporation (the “Parent”), IRIDIUM SATELLITE LLC, a Delaware limited liability company, as borrower (the “Borrower”), THE GUARANTORS under and as defined in the COFACE Facility Agreement referred to below, SOCIÉTÉ GÉNÉRALE as agent of the other Finance Parties (in this capacity the “COFACE Agent”) and DEUTSCHE BANK TRUST COMPANY AMERICAS as security agent and trustee for the Secured Parties (the “Security Agent” and the “U.S. Collateral Agent”) and is made with reference to the COFACE Facility Agreement, dated as of October 4, 2010, by and among the Parent, the Borrower, the other Obligors party thereto, the Lenders party thereto, the COFACE Agent and Deutsche Bank Trust Company Americas, as Security Agent and U.S. Collateral Agent, as amended and restated from time to time (the “COFACE Facility Agreement”).
agreement:
1. | Definitions; Interpretation |
1.1 | Definitions |
Capitalised terms defined in the COFACE Facility Agreement have, unless expressly defined in this Amendment, the same meaning in this Amendment.
1.2 | Construction |
The principles of construction set out in Clause 1.2 (Construction) of the COFACE Facility Agreement will have effect as if set out in this Amendment.
2. | Amendments |
Effective as of the Effective Date, paragraphs 2 (Security Agent as holder of Security) and 7 (Approval) of Schedule 28 (Security Agent) of the COFACE Facility Agreement shall be substituted in their entirety with the corresponding provisions set out in Schedule 1 (Amendments to Security Agent Provisions) of this Amendment.
3. | Representations |
3.1 | Representations |
The representations set out in this Clause 3 (Representations) are made by each Obligor on the date of this Amendment to each Finance Party.
3.2 | Powers and authority |
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise the entry into, performance and delivery of, this Amendment and the transactions contemplated by this Amendment.
1 |
3.3 | Legal validity |
Subject to the Legal Reservations, the obligations expressed to be assumed by it in this Amendment are legal, valid, binding and enforceable obligations.
3.4 | Non-conflict |
The entry into and performance by it of, and the transactions contemplated by, this Amendment do not and will not conflict with:
(a) | any law or regulation applicable to it; |
(b) | its constitutional documents; or |
(c) | any agreement or instrument binding upon it or any of its assets or constitute a default of termination event (however described) under any such agreement or instrument where such circumstance has or is reasonably likely to have a Material Adverse Effect. |
3.5 | Authorisations |
All authorisations required by it in connection with the entry into, performance, validity and enforceability of, and the transactions contemplated by, this Amendment have been obtained or effected (as appropriate) and are in full force and effect.
3.6 | Governing law and enforcement |
(a) | Subject to the Legal Reservations, the choice of governing law of this Amendment will be recognised and enforced in its Relevant Jurisdictions. |
(b) | Subject to the Legal Reservations, any judgment obtained in relation to this Amendment will be recognised and enforced in its Relevant Jurisdictions. |
3.7 | Credit Agreement |
Unless a representation and warranty set out in clause 20 (Representations) of the COFACE Facility Agreement is expressed to be given at a specific date, each Obligor makes the representations and warranties set out in clause 20 (Representations) of the COFACE Facility Agreement (other than the representations and warranties in clauses 20.14(a), (b) and (c) (Original Financial Statements), 20.18 (Taxation) and 20.24 (Shares and Material Companies) of the COFACE Facility Agreement) on the Effective Date, in each case as if references to the COFACE Facility Agreement are references to the COFACE Facility Agreement, as amended hereby, with reference to the facts and circumstances then existing, provided that, in the case of those representations and warranties contained in clause 20.13 (No misleading information) of the COFACE Facility Agreement, such representations and warranties are made only with respect to any subsequent and new information delivered under the COFACE Facility Agreement since the last period where such representation and warranty was made or deemed to be made under the COFACE Facility Agreement.
2 |
4. | CONDITIONS TO EFFECTIVENESS |
This Amendment shall become effective on the Effective Date upon the due execution of a signature page to this Amendment by each of the Parent, the Borrower, the other Obligors, the COFACE Agent and the Security Agent on behalf of the Finance Parties and delivery of each party’s respective signature pages to each of the other parties hereto.
5. | Governing law; jurisdiction, etc. |
This Amendment and any non-contractual obligations arising out of or in connection with it are governed by English law. The provisions of Clause 40 (Enforcement) of the COFACE Facility Agreement are hereby incorporated by reference, mutatis mutandis, as if set forth in full herein.
6. | Miscellaneous |
(a) | This Amendment is a Finance Document. |
(b) | Each Obligor: |
(i) | agrees to the amendments to the COFACE Facility Agreement as contemplated by this Amendment; and |
(ii) | with effect from the Effective Date, confirms that any guarantee or security given by it or created under a Finance Document will: |
(A) | continue in full force and effect; and |
(B) | extend to the liabilities and obligations of the Obligors to the Finance Parties under the Finance Documents as amended by this Amendment. |
(c) | On and after the date hereof, each reference in the COFACE Facility Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the COFACE Facility Agreement, and each reference in the other Finance Documents to the “COFACE Facility Agreement”, “thereunder”, “thereof” or words of like import referring to the COFACE Facility Agreement shall mean and be a reference to the COFACE Facility Agreement as amended by this Amendment. |
(d) | Except as specifically amended by this Amendment, the COFACE Facility Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed. |
(e) | Each Finance Party reserves any other right or remedy it may have now or subsequently. The execution, delivery and performance of this Amendment shall not constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of the Finance Parties under the COFACE Facility Agreement. |
(f) | Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose or be given any substantive effect. |
3 |
(g) | This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Signatures to this Amendment may be delivered by facsimile or other electronic means of transmission, and any signature so delivered shall be deemed an original executed counterpart. |
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SCHEDULE 1
AMENDMENTS TO SECURITY AGENT PROVISIONS
2. | Security Agent as holder of Security |
(a) | In this Schedule 28 (Security Agent): |
(i) | Security Agent Claim has the meaning given to it in paragraph (c) below. |
(ii) | Secured Party Claim means any amount which an Obligor owes to a Secured Party under or in connection with the Finance Documents. |
(b) | Unless expressly provided to the contrary, the Security Agent holds any security created by a Transaction Security Document as agent for the relevant Secured Parties. |
(c) | Each Obligor must pay the Security Agent, as an independent and separate creditor, an amount equal to each Secured Party Claim on its due date (each, a Security Agent Claim). For the purposes of Russian law and subject to the other provisions of this paragraph 2, the Security Agent is the joint and several creditor with each Secured Party in respect of each Secured Party Claim, with an independent right to demand and enforce payment of each Security Agent Claim on the terms set out in paragraphs (f) to (m) below. |
(d) | Unless expressly provided to the contrary in any Finance Document, the Security Agent holds: |
(i) | the benefit of any Security Agent Claims; and |
(ii) | any proceeds of the enforcement of any Transaction Security Documents, |
for the benefit, and as the property, of, and on trust for, the Secured Parties and so that they are not available to the personal creditors of the Security Agent or otherwise available to the Security Agent for its own use.
(e) | The Security Agent will separately identify in its records the property rights referred to in paragraph (d) above. |
(f) | It is agreed that, in respect of each Security Agent Claim, the Security Agent shall: |
(i) | share the proceeds of each Security Agent Claim with the other Secured Parties; and |
(ii) | pay those proceeds to the Secured Parties, |
in accordance with their respective interests in the amounts outstanding under the Finance Documents.
(g) | The Security Agent may enforce performance of any Security Agent Claim in its own name as an independent and separate right. This includes filing any suit, execution, enforcement of Transaction Security Documents in accordance with their respective terms, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceeding. |
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(h) | Each Secured Party must, at the request of the Security Agent, perform any act required in connection with the enforcement of any Security Agent Claim. This includes issuing a power of attorney to the Security Agent and joining in any proceedings as co-claimant with the Security Agent. |
(i) | Unless the Security Agent fails to enforce a Security Agent Claim within a reasonable time after its due date, a Secured Party may not take any action to enforce the corresponding Secured Party Claim unless it is requested to do so by the Security Agent. |
(j) | Each Obligor irrevocably and unconditionally waives any right it may have to require a Secured Party to join in any proceedings as co-claimant with the Security Agent in respect of any Security Agent Claim. |
(k) | In each case, and (for the avoidance of doubt) without otherwise increasing the aggregate indebtedness of the Obligors: |
(i) | discharge by an Obligor of a Secured Party Claim will discharge the corresponding Security Agent Claim in the same amount; and |
(ii) | discharge by an Obligor of a Security Agent Claim will discharge the corresponding Secured Party Claim in the same amount. |
(l) | The aggregate amount of the Security Agent Claims will never exceed the aggregate amount of Secured Party Claims. |
(m) | (i) | A defect affecting a Security Agent Claim against an Obligor will not affect any Secured Party Claim. |
(ii) | A defect affecting a Secured Party Claim against an Obligor will not affect any Security Agent Claim. |
(n) | If the Security Agent returns to any Obligor, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Security Agent. |
7. | Approval |
Each Secured Party:
(a) | confirms its approval of each Transaction Security Document; |
(b) | authorises and directs the Security Agent (by itself or by such person(s) as it may nominate) to enter into and enforce the Transaction Security Documents as trustee (or agent) or as otherwise provided (and whether or not expressly in the names of the Secured Parties) on its behalf for the purpose of all laws other than Russian law; and |
(c) | authorises and directs the Security Agent to enter into and enforce the Transaction Security Documents governed by Russian law in its own name as the joint and several creditor with each Secured Party. |
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IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be duly executed and delivered as of the date first above written.
Parent | ||
IRIDIUM COMMUNICATIONS INC. | ||
By: | /s/ Thomas J. Fitzpatrick | |
Name: Thomas J. Fitzpatrick | ||
Title: Chief Financial Officer | ||
Borrower | ||
IRIDIUM SATELLITE LLC | ||
By: | /s/ Thomas J. Fitzpatrick | |
Name: Thomas J. Fitzpatrick | ||
Title: Chief Financial Officer | ||
Obligors | ||
IRIDIUM COMMUNICATIONS INC. | ||
By: | /s/ Thomas J. Fitzpatrick | |
Name: Thomas J. Fitzpatrick | ||
Title: Chief Financial Officer | ||
IRIDIUM HOLDINGS LLC | ||
By: | /s/ Thomas J. Fitzpatrick | |
Name: Thomas J. Fitzpatrick | ||
Title: Chief Financial Officer | ||
IRIDIUM CARRIER HOLDINGS LLC | ||
By: | /s/ Thomas J. Fitzpatrick | |
Name: Thomas J. Fitzpatrick | ||
Title: Chief Financial Officer |
7 |
IRIDIUM CARRIER SERVICES LLC | ||
By: | /s/ Thomas J. Fitzpatrick | |
Name: Thomas J. Fitzpatrick | ||
Title: Chief Financial Officer | ||
IRIDIUM CONSTELLATION LLC | ||
By: | /s/ Thomas J. Fitzpatrick | |
Name: Thomas J. Fitzpatrick | ||
Title: Chief Financial Officer | ||
IRIDIUM GOVERNMENT SERVICES LLC | ||
By: | /s/ Thomas J. Fitzpatrick | |
Name: Thomas J. Fitzpatrick | ||
Title: Chief Financial Officer, Iridium Constellation LLC, its Manager | ||
SYNCOM-IRIDIUM HOLDINGS CORP. | ||
By: | /s/ Thomas J. Fitzpatrick | |
Name: Thomas J. Fitzpatrick | ||
Title: Chief Financial Officer | ||
IRIDIUM BLOCKER-B INC. | ||
By: | /s/ Thomas J. Fitzpatrick | |
Name: Thomas J. Fitzpatrick | ||
Title: Chief Financial Officer | ||
IRIDIUM SATELLITE SA LLC | ||
By: | /s/ Thomas J. Fitzpatrick | |
Name: Thomas J. Fitzpatrick | ||
Title: Chief Financial Officer, Iridium Satellite LLC, its Manager |
8 |
COFACE Agent | ||
SOCIÉTÉ GÉNÉRALE | ||
By: | /s/ Fleur Ferrari | |
Name: Fleur Ferrari | ||
Title: | ||
By: | /s/ Olivia Brun Codina | |
Name: Olivia Brun Codina | ||
Title: |
Security Agent | ||
DEUTSCHE BANK TRUST COMPANY AMERICAS | ||
By: | /s/ Deirdre Lewis | |
Name: Deirdre Lewis | ||
Title: Vice President | ||
By: | /s/ Nigel W. Luke | |
Name: Nigel W. Luke | ||
Title: Vice President |
Execution Version
AIREON LLC
SUBSCRIPTION AGREEMENT
FOR INTERESTS
(Preferred Interests)
AIREON LLC
SUBSCRIPTION AGREEMENT
FOR
INTERESTS
(Preferred Interests)
THE OFFERING OF SECURITIES DESCRIBED HEREIN HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THIS OFFERING IS MADE PURSUANT TO RULE 506 OF REGULATION D UNDER SECTION 4(2) OF SAID ACT, WHICH EXEMPTS FROM SUCH REGISTRATION TRANSACTIONS NOT INVOLVING A PUBLIC OFFERING. FOR THIS REASON, THESE SECURITIES WILL BE SOLD ONLY TO INVESTORS WHO MEET CERTAIN MINIMUM SUITABILITY QUALIFICATIONS DESCRIBED HEREIN.
A SUBSCRIBER SHOULD BE PREPARED TO BEAR THE ECONOMIC RISK OF AN INVESTMENT IN THE COMPANY FOR AN INDEFINITE PERIOD OF TIME BECAUSE THE INTERESTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR THE LAWS OF ANY OTHER JURISDICTION, AND, THEREFORE, CANNOT BE SOLD UNLESS THEY ARE SUBSEQUENTLY REGISTERED OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THERE IS NO OBLIGATION OF THE ISSUER TO REGISTER THE INTERESTS UNDER THE SECURITIES ACT OR THE LAWS OF ANY OTHER JURISDICTION. TRANSFER OF THE INTERESTS IS ALSO RESTRICTED BY THE TERMS OF THE SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT RELATING THERETO.
NO ACTION HAS BEEN OR WILL BE TAKEN IN ANY JURISDICTION OUTSIDE THE UNITED STATES OF AMERICA THAT WOULD PERMIT AN OFFERING OF THE INTERESTS, OR POSSESSION OR DISTRIBUTION OF OFFERING MATERIALS IN CONNECTION WITH THE ISSUANCE OF THESE INTERESTS, IN ANY COUNTRY OR JURISDICTION WHERE ACTION FOR THAT PURPOSE IS REQUIRED. IT IS THE RESPONSIBILITY OF ANY PERSON WISHING TO PURCHASE ANY OF THESE INTERESTS TO SATISFY HIMSELF, HERSELF OR ITSELF AS TO FULL OBSERVANCE OF THE LAWS OR REGULATIONS OF ANY RELEVANT TERRITORY OUTSIDE THE UNITED STATES OF AMERICA IN CONNECTION WITH ANY SUCH PURCHASE, INCLUDING OBTAINING ANY REQUIRED GOVERNMENTAL OR OTHER CONSENTS OR OBSERVING ANY OTHER APPLICABLE FORMALITIES.
AIREON LLC IS NOT A UCITS FUND. IT HAS NOT BEEN NOR WILL IT BE REGISTERED WITH THE BANK OF ITALY AND THE Commissione Nazionale per le Società e la Borsa (CONSOB). ITALIAN AUTHORITIES FOR REGISTRATION. THE INTERESTS ARE OFFERED UPON THE EXPRESS REQUEST OF THE INVESTOR, WHO HAS DIRECTLY CONTACTED AIREON LLC OR ITS MEMBERS ON THE INVESTOR’S OWN INITIATIVE. NO ACTIVE MARKETING OF AIREON LLC HAS BEEN NOR WILL IT BE MADE IN ITALY AND THIS SUBSCRIPTION AGREEMENT HAS BEEN SENT TO THE INVESTOR AT THE INVESTOR’S REQUEST. THE INVESTOR ACKNOWLEDGES THE ABOVE AND HEREBY AGREES NOT TO TRANSFER ANY INTERESTS, NOR TO CIRCULATE THIS SUBSCRIPTION AGREEMENT TO OTHER ITALIAN INVESTORS UNLESS EXPRESSLY PERMITTED BY APPLICABLE LAW. THIS SUBSCRIPTION AGREEMENT AND OTHER OFFERING MATERIALS RELATING TO THE OFFER OF INTERESTS ARE STRICTLY CONFIDENTIAL AND MAY NOT BE DISTRIBUTED TO ANY PERSON OR ENTITY OTHER THAN THE RECIPIENTS HEREOF.
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SUBSCRIPTION AGREEMENT
This Subscription Agreement (this “Agreement”), dated as of December 20, 2013, is entered into by and among AIREON LLC, a Delaware limited liability company (the “Company”), and Enav S.p.A., a company formed under the laws of the Italian Republic (the “Investor”), in connection with the Investor’s purchase of Preferred Interests in the Company (“Interests”) and admission as a Member of the Company pursuant to the terms of this Agreement and the Company’s Second Amended and Restated Limited Liability Company Agreement, in substantially the form set forth as Exhibit A attached hereto (the “Operating Agreement”), which shall be entered into on or before February 14, 2014 and shall amend and restate that certain Amended and Restated Limited Liability Company Agreement, dated as of November 19, 2012, as amended by Amendment No. 1 dated as of June 27, 2013 (as so amended, the “Original Operating Agreement”), by and among NAV CANADA Satellite, Inc., a wholly owned subsidiary of NAV CANADA ("NAV CANADA US Subsidiary"), NAV CANADA, Iridium Satellite LLC (“Iridium”), and the Company. Capitalized terms used but not defined herein shall have the meanings given them in the Operating Agreement.
The Investor hereby subscribes for Interests in the Company, and the Company and the Investor hereby agree as follows:
1. Subscription.
(a) First Additional Investors Tranche Financing.
Subject to the terms and conditions hereof, on or before February 14, 2014, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby subscribes for and agrees to purchase the amount of Preferred Interests convertible into the amount of the Fully Diluted Company Interests set forth opposite the heading “First Tranche Capital Contribution” set forth on Exhibit B attached hereto (the “First Tranche”) for the aggregate purchase price that corresponds to such First Tranche Capital Contribution amount set forth on Exhibit B attached hereto (the “Initial Purchase Price”).
(b) Second Additional Investors Tranche Financing.
(i) Subject to the terms and conditions hereof and the terms and conditions of the Operating Agreement, including Section 3.6.5.1 thereof, upon the satisfaction (or waiver by the Investor) of all of the conditions set forth in Section 3.6.5.1 of the Operating Agreement, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby subscribes for and agrees to purchase the amount of Preferred Interests convertible into the amount of the Fully Diluted Company Interests set forth opposite the heading “Second Tranche Capital Contribution” set forth on Exhibit B attached hereto for the aggregate purchase price that corresponds to such Second Tranche Capital Contribution amount set forth on Exhibit B attached hereto.
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(c) Third Additional Investors Tranche Financing.
(i) Subject to the terms and conditions hereof and the terms and conditions of the Operating Agreement, including Section 3.6.5.2 thereof, upon the satisfaction (or waiver by the Investor) of all of the conditions set forth in Section 3.6.5.2 of the Operating Agreement, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby subscribes for and agrees to purchase the amount of Preferred Interests convertible into the amount of the Fully Diluted Company Interests set forth opposite the heading “Third Tranche Capital Contribution” set forth on Exhibit B attached hereto for the aggregate purchase price that corresponds to such Third Tranche Capital Contribution amount set forth on Exhibit B attached hereto.
(d) Fourth Additional Investors Tranche Financing.
(i) Subject to the terms and conditions hereof and the terms and conditions of the Operating Agreement, including Section 3.6.5.3 thereof, upon the satisfaction (or waiver by the Investor) of all of the conditions set forth in Section 3.6.5.3 of the Operating Agreement, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby subscribes for and agrees to purchase the amount of Preferred Interests convertible into the amount of the Fully Diluted Company Interests set forth opposite the heading “Fourth Tranche Capital Contribution” set forth on Exhibit B attached hereto for the aggregate purchase price that corresponds to such Fourth Tranche Capital Contribution amount set forth on Exhibit B attached hereto.
(e) Closing of Purchase and Sale.
(i) The purchase and sale of the First Tranche (the “Initial Closing”) shall take place at the offices of the Company, as soon as practicable after satisfaction of the terms and conditions of this Agreement relating to the Initial Closing; provided, however, that if such day is a Saturday, Sunday or legal holiday (in the State of Delaware or in Rome, Italy), the Initial Closing shall take place on the following Business Day (such date, the “Initial Closing Date”). At the Initial Closing, (1) the Company shall deliver to the Investor the various certificates, instruments and documents referred to in Section 3 below, (2) the Investor shall deliver to the Company the various certificates, instruments and documents referred to in Section 4 below, (3) the Company shall issue to the Investor the applicable Preferred Interests being purchased by the Investor by appropriate notation in the Member Register, and (4) the Investor shall deliver to the Company, by wire transfer of immediately available funds to an account identified by the Company and communicated in writing to the Investor at least 15 (fifteen) days prior to the Initial Closing, the Initial Purchase Price. Notwithstanding the foregoing, if the purchase and sale of the First Tranche takes place at more than one closing, then the Company and the Investor shall only be required to deliver the deliverables set forth in foregoing clauses (1) and (2) at the first such closing.
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(ii) The purchase and sale of the Investor's portion of the Second Additional Investors Financing Interest, the Third Additional Investors Financing Interest, and the Fourth Additional Investors Financing Interest (each such purchase and sale, a “Subsequent Closing”, and the date of any such Subsequent Closing, a “Subsequent Closing Date”) shall take place at the offices of the Company in accordance with the terms and conditions herein and the Operating Agreement. At any Subsequent Closing, (1) the Company shall deliver to the Investor the various certificates, instruments and documents referred to in Section 5 below, (2) the Investor shall deliver to the Company the various certificates, instruments and documents referred to in Section 6 below, (3) the Company shall issue to the Investor the applicable Preferred Interests being purchased by the Investor in such Subsequent Closing by appropriate notation in the Member Register, and (4) the Investor shall deliver to the Company, by wire transfer of immediately available funds to an account identified by the Company and communicated in writing to the Investor at least 15 (fifteen) days prior to the Initial Closing, the applicable purchase price for such Subsequent Closing. Notwithstanding the foregoing, if the purchase and sale of the Second Additional Investors Financing Interest takes place at more than one closing, then the Company and the Investor shall only be required to deliver the deliverables set forth in foregoing clauses (1) and (2) at the first such closing for such Additional Investors Financing.
2. Operating Agreement. Concurrent with the Initial Closing, (i) the Company shall include a schedule to the Operating Agreement which reflects the admission of the Investor as a member of the Company and issuance of Preferred Interests issuable at the Initial Closing to the Investor, and (ii) the Investor shall execute a counterparty to the Operating Agreement in accordance with the terms and conditions thereof. The Parties agree and acknowledge that the Operating Agreement that will be executed at the Initial Closing by the Investor and the other parties shall have the form set forth in Exhibit A, provided that any change, amendment and/or modification to the text of the Operating Agreement attached herewith under Exhibit A, occurring, due and/or necessary for whatever reason prior to Initial Closing, other than the filling in of dates, changes to entity names to reflect assignment of subscription rights to subsidiaries and similar clerical matters, shall be immediately communicated to the Investor and shall be approved in writing by the Investor, which approval shall not unreasonably be withheld, denied or delayed.
3. Conditions to the Investor’s Obligations at Initial Closing. The obligations of the Investor under this Agreement to be performed at the Initial Closing are subject to the fulfillment on or before the Initial Closing of each of the following conditions by the Company (unless waived by the Investor in writing):
(a) Representations and Warranties. The representations and warranties by the Company contained in Section 8 of this Agreement that are qualified by reference to “material”, “materially”, “material adverse effect” or “Material Adverse Change” shall be true and correct in all respects when made and on and as of the Initial Closing (with the same effect as though such representations and warranties had been made on and as of the date of such Initial Closing), and all other representations and warranties by the Company contained in Section 8 of this Agreement shall be true and correct in all material respects when made and on and as of the Initial Closing (with the same effect as though such representations and warranties had been made on and as of the date of such Initial Closing), except for such representations and warranties which are made as of a certain date, which shall be true and correct in all respects or in all material respects, as applicable, as of such date.
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(b) Performance. The Company shall have performed and complied in all material respects with all agreements, obligations and conditions contained in this Agreement and the Operating Agreement that are required to be performed or complied with by it on or before the Initial Closing.
(c) Compliance Certificate. An officer of the Company shall deliver to the Investor at the Initial Closing a certificate signed by him on behalf of the Company stating that the conditions specified in Sections 3(a), 3(b) and 3(d) hereof have been fulfilled and stating that on the Initial Closing Date, to the Company’s knowledge, there exists no event, circumstance, condition, fact, effect or other matter, or series of events, circumstances, conditions, facts, effects or matters, individually or in the aggregate, that has had or would be reasonably expected to have a Material Adverse Change.
(d) Consents and Waivers. The Company shall have obtained all consents or waivers necessary to execute and perform its obligations under this Agreement and the Operating Agreement and to carry out the transactions contemplated hereby and thereby. All corporate and other action, including any amendments to the Operating Agreement, and any governmental filings necessary to effectuate the terms of this Agreement, the Operating Agreement and other agreements and instruments executed and delivered by the Company in connection herewith shall have been made or taken.
4. Conditions to Company’s Obligations at Initial Closing. The obligations of the Company to the Investor under this Agreement to be performed at the Initial Closing are subject to the fulfillment on or before the Initial Closing of each of the following conditions by the Investor (unless waived by the Company in writing):
(a) Representations and Warranties of the Investor. The representations and warranties by the Investor contained in Section 7 of this Agreement that are qualified by reference to “material”, “materially”, “material adverse effect” or “Material Adverse Change” shall be true and correct in all respects when made and on and as of the Initial Closing (with the same effect as though such representations and warranties had been made on and as of the Initial Closing) and all other representations and warranties by the Investor shall be true and correct in all material respects when made and on and as of the Initial Closing (with the same effect as though such representations and warranties had been made on and as of the date of the Initial Closing), except for such representations and warranties which are made as of a certain date, which shall be true and correct in all respects or in all material respects, as applicable, as of such date.
(b) Compliance Certificate from the Investor. The Company shall have received a certificate of the Investor signed by an authorized officer of the Investor to the effect that the conditions in Sections 4(a) and 4(c) have been satisfied.
(c) Consents and Waivers. The Investor shall have obtained all consents or waivers necessary to execute and perform its obligations under this Agreement and the Operating Agreement and to carry out the transactions contemplated hereby and thereby. All corporate and other action, including any amendments to the Operating Agreement, and any governmental filings necessary to effectuate the terms of this Agreement, the Operating Agreement and other agreements and instruments executed and delivered by the Investor in connection herewith shall have been made or taken.
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(d) Purchase Price. The Investor shall have funded to the Company the Initial Purchase Price.
5. Conditions to the Investor’s Obligations at any Subsequent Closing. The obligations of the Investor under this Agreement to be performed at any Subsequent Closing are subject to the fulfillment on or before such Subsequent Closing of each of the following conditions by the Company (unless waived by the Investor in writing):
(a) Representations and Warranties of the Company. The representations and warranties by the Company contained in Section 8 of this Agreement that are qualified by reference to “material”, “materially”, “material adverse effect” or “Material Adverse Change” shall be true and correct in all respects as of such Subsequent Closing Date, as if made on and as of such Subsequent Closing Date, and all other representations and warranties by the Company contained in Section 8 of this Agreement shall be true and correct in all material respects as of such Subsequent Closing Date, as if made on such Subsequent Closing Date, except for such representations and warranties which are made as of a certain date, which shall be true and correct in all respects or in all material respects, as applicable, as of such date.
(b) Performance. The Company shall have performed and complied in all material respects with all agreements, obligations and conditions contained in this Agreement, and the Operating Agreement that are required to be performed or complied with by it on or before such Subsequent Closing.
(c) Compliance Certificate. The Investor shall have received a certificate of the Company signed by an authorized officer of the Company to the effect that the conditions in Sections 5(a), 5(b) and 5(d) have been satisfied.
(d) Consents and Waivers. The Company shall have obtained all consents or waivers necessary to execute and perform its obligations under this Agreement and the Operating Agreement and to carry out such Subsequent Closing. All corporate and other action, including any amendments to the bylaws of the Company, and any governmental filings necessary to effectuate the terms of this Agreement, the Operating Agreement and other agreements and instruments executed and delivered by the Company in connection herewith shall have been made or taken.
(e) Operating Agreement Conditions. All of the conditions applicable to such Subsequent Closing set forth in the Operating Agreement, including the conditions set forth in Section 3.6.5 therein, have been satisfied.
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6. Conditions to Company’s Obligations at any Subsequent Closing. The obligations of the Company to the Investor under this Agreement to be performed at any Subsequent Closing are subject to the fulfillment on or before such Subsequent Closing of each of the following conditions by the Investor (unless waived by the Company in writing):
(a) Representations and Warranties of the Investor. The representations and warranties by the Investor contained in Section 7 of this Agreement that are qualified by reference to “material”, “materially”, “material adverse effect” or “Material Adverse Change” shall be true and correct in all respects as of such Subsequent Closing Date, as if made on and as of such Subsequent Closing Date, and all other representations and warranties by the Investor shall be true and correct in all material respects as of such Subsequent Closing Date, as if made on such Subsequent Closing Date, except for such representations and warranties which are made as of a certain date, which shall be true and correct in all respects or in all material respects, as applicable, as of such date.
(b) Compliance Certificate from the Investor. The Company shall have received a certificate of the Investor signed by an authorized officer of the Investor to the effect that the conditions in Sections 6(a) and 6(c) have been satisfied.
(c) Consents and Waivers. The Investor shall have obtained all consents or waivers necessary to execute and perform its obligations under this Agreement and the Operating Agreement and to carry out such Subsequent Closing. All corporate and other action, including any amendments to the Operating Agreement, and any governmental filings necessary to effectuate the terms of this Agreement, the Operating Agreement and other agreements and instruments executed and delivered by the Investor in connection herewith shall have been made or taken.
(d) Purchase Price. The Investor shall have funded to the Company the applicable purchase price for such Subsequent Closing.
7. The Investor’s Representations. In connection with the Investor’s purchase of the Preferred Interests, the Investor makes the following representations and warranties on which the Company is entitled to rely.
(a) The Investor is a Person duly organized, validly existing and in good standing under the laws of the Italian Republic and has all requisite power and authority to carry on its business as now conducted, to own and use the properties owned and used by it and to enter into this Agreement and the Operating Agreement. All action (corporate or other) on the part of the Investor for the authorization of the execution and delivery of this Agreement and the Operating Agreement and the performance of all obligations of the Investor hereunder, has been taken as of the date hereof, and thereunder, shall be taken as of the date thereof, and each such agreement constitutes, or shall constitute, its valid and legally binding obligation, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights and the general equity principles.
6. |
(b) The Investor has received, read and understands the Operating Agreement and this Agreement. For purposes of the preceding sentence, the Operating Agreement shall mean the Operating Agreement in the form attached herewith under Exhibit A, and for the Subsequent Closings the most recent version of such document that was made available to the Investor through the time immediately prior to such Subsequent Closing.
(c) No representations or warranties have been made to the Investor by the Company, or any agent of said persons, other than as set forth in the Operating Agreement and this Agreement.
(d) The Investor is acquiring the Preferred Interests solely for the Investor’s own account and not directly or indirectly for the account of any other person whatsoever for investment and not with a view to, or for sale in connection with, any distribution of the Preferred Interests. The Investor does not have any contract, undertaking or arrangement with any person to sell, transfer or grant a participation to any person with respect to the Preferred Interests.
(e) The Investor is an “accredited investor” within the meaning of SEC Rule 501 of Regulation D under the Securities Act, as presently in effect.
(f) No suit, action, claim, investigation or other proceeding is pending or, to the Investor’s knowledge, is threatened against the Investor or its Affiliates which questions the validity of the Operating Agreement or this Agreement or any action taken or to be taken pursuant to the Operating Agreement or this Agreement. For the purpose of this Agreement, “knowledge” means, with respect to the Investor, the actual knowledge of those individuals set forth on Schedule 7(f) hereto after due inquiry.
(g) All action on the part of the Investor, its officers, directors and members necessary for the authorization of the execution and delivery of this Agreement and the Operating Agreement and the performance of all obligations of the Investor hereunder and thereunder has been taken as of the date hereof. The Operating Agreement and this Agreement create valid and binding obligations of the Investor and are enforceable against the Investor in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
8. Company’s Representations. The Company makes the following representations and warranties on which the Investor is entitled to rely:
(a) The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to carry on its business as now conducted and in which it proposes to engage in and to own and use the properties owned and used by it. The Company has made available to the Investor a complete and correct copy of its certificate of formation and the Original Operating Agreement, each as amended to date (the “Company Organizational Documents”).
7. |
(b) Capitalization and Voting Rights.
(i) Immediately prior to the Initial Closing, the Fully Diluted Company Interests consist of (i) 81.3% issued and outstanding Common Interests, all of which are held by Iridium and (ii) 18.7% issued and outstanding Preferred Interests, all of which are held by NAV CANADA US Subsidiary.
(ii) At the Initial Closing and after giving effect to the transactions contemplated herein occurring on or prior to the Initial Closing Date, the Fully Diluted Company Interests will consist of (i) 75.19% issued and outstanding Common Interests, all of which are held by Iridium and (ii) 24.81% issued and outstanding Preferred Interests, which are held by the Investor, NAV CANADA US Subsidiary, IAA and Naviair in the following percentages:
The Investor – 3.84%
NAV CANADA US Subsidiary – 17.29%
IAA – 1.84%
Naviair – 1.84%
(iii) The Company does not own, directly or indirectly, any equity, membership interest, partnership interest, joint venture interest, or other equity or voting interests in, or any interest convertible into, exercisable or exchangeable for any of the foregoing, any Person.
Except as set forth in clause (ii) above, at the Initial Closing or the last Subsequent Closing contemplated herein, as applicable, there are or will be no other Interests or securities (including interest appreciation, “phantom interest”, interest participation or similar rights) of, or in respect of, the Company of any class issued, reserved for issuance or outstanding. Except as set forth on Schedule 8(b) hereto, at the Initial Closing or the last Subsequent Closing, as applicable, there are or will be no outstanding options, warrants, rights (including exchange, conversion, subscription, purchase or preemptive rights), agreements or obligations for the purchase or acquisition from the Company of any Interests or that could require the Company to issue, sell or otherwise cause to become outstanding, purchase or dispose of any Interests (other than pursuant to this Agreement, the Subscription Agreements between the Company and each of NAV CANADA US Subsidiary, IAA and Naviair, and the Operating Agreement). At the Initial Closing or the last Subsequent Closing, as applicable, neither the Company nor, to the Company’s knowledge, any of its members or directors, is or will be a party or subject to any agreement, commitment or understanding (including any voting trusts or proxies), which affects or relates to the voting or giving of written consents with respect to any Interest or security of the Company or by a Director of the Company (other than the Operating Agreement).
(c) The execution, delivery and performance of the Operating Agreement and this Agreement, the consummation of all of the transactions contemplated hereby and thereby do not and will not conflict with or result in any violation of or default under any provision of any other agreement or instrument to which the Company is a party or any license, permit, franchise, judgment, order, writ or decree, or any law, statute, rule or regulation, applicable to the Company.
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(d) Except as set forth on Schedule 8(d)(i) hereto, no suit, action, claim, investigation or other proceeding is pending or, to the Company’s knowledge is threatened against the Company or its Affiliates which either (x) questions the validity of the Operating Agreement or this Agreement or any action taken or to be taken pursuant to the Operating Agreement or this Agreement; or (y) could reasonably be expected to have a material adverse effect on the Company, its business, operations, assets, properties, conditions (financial or otherwise) or investments. For the purpose of this Agreement, “knowledge” means, with respect to the Company, the actual knowledge of those individuals set forth on Schedule 8(d)(ii) hereto after due inquiry.
(e) The Preferred Interests being purchased from the Company by the Investor hereunder, when sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly authorized, issued, fully paid and nonassessable, will conform to the description of Preferred Interests contained in the Company’s Operating Agreement, will have been issued, sold and delivered in compliance with all applicable federal and state laws concerning the issuance and sale of securities and will be free and clear of (i) restrictions on transfer, other than restrictions on transfer under this Agreement and the Operating Agreement, and under applicable regional, supranational, federal, state, provincial, foreign or local law, statute, rule, regulation, order, ordinance, judgment, code or decree (each a “Law” and, collectively, “Laws”), and (ii) Taxes, liens, warrants, purchase rights, contracts, commitments, equities, demands and claims whatsoever. For the purpose of this Agreement, “Tax” means any federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Section 59A of the Internal Revenue Code of 1986, as amended), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, production personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated or other tax of any kind whatsoever, including any interest, penalty or addition thereto and any interest, penalties and additions in respect of such interest, penalties and additions, whether disputed or not.
(f) All action on the part of the Company, its officers, directors and members necessary for the authorization of the execution and delivery of this Agreement and the Operating Agreement and the performance of all obligations of the Company hereunder and thereunder (including the authorization and issuance of the Preferred Interests being sold hereunder) has been taken as of the date hereof. The Operating Agreement and this Agreement create valid and binding obligations of the Company and are enforceable against the Company in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
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(g) The Company has delivered to the Investor a pro forma balance sheet of the Company as of October 31, 2013 in the form attached hereto as Exhibit C (the “Balance Sheet”). The Balance Sheet has been prepared from and is in accordance with the Company’s books and records and fairly presents in all material respects the assets and liabilities of the Company as of the date thereof. Except as set forth in the Balance Sheet or as set forth on Schedule 8(g), as of the Initial Closing Date, the Company has no material liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to October 31, 2013 and (ii) liabilities that, individually and in the aggregate, are not material to the financial condition or operating results of the Company.
(h) Assuming the representations and warranties of the Investor in this Agreement are true and accurate, the offer, sale and issuance of the Preferred Interests as contemplated by this Agreement are exempt from the registration requirements of the Securities Act, and the qualification or registration requirements of applicable blue sky laws. Neither the Company nor any authorized agent acting on its behalf has offered or will offer or sell any securities, or has taken or will take any other action (including any offering of any securities of the Company under circumstances that would require under the Securities Act the integration of such offering with the offering and sale of the Preferred Interests being acquired hereunder), that would cause the loss of such exemptions.
(i) The Company is not in violation of any provision of the Company Organizational Documents. No third party (including Governmental Authority) notices, consents or waivers are required to be obtained or made in connection with (i) the execution, delivery and performance of this Agreement or the Operating Agreement which has not been obtained or (ii) the consummation of the transactions contemplated by this Agreement or the Operating Agreement.
(j) The Company is in compliance in all material respects with all applicable Laws. The Company has not received any notice of, and to the Company’s knowledge, no investigation or review is in process or threatened by any Governmental Authority with respect to, any violation or alleged violation of any applicable Law. For the purpose of this Agreement, “Governmental Authority” means any supranational, national, state, provincial, local, foreign or other political subdivision thereof or entity, department, agency or instrumentality exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to the government.
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(k) The Company is in compliance in all material respects with all Company Contracts. Each material Company Contract is a legal, valid and binding agreement, assuming the due authorization, execution and delivery thereof by the third-party counter-parties thereto, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting enforcement of creditors’ rights and to general equity principles, and each is in full force and effect on identical terms following the consummation of the transactions contemplated hereby. To the Company’s knowledge, no party to any material Company Contract other than the Company is in breach or default, and no event has occurred which with notice or lapse of time or both would constitute a breach or default or permit termination, modification or acceleration under any material Company Contract. The Company has performed all of its obligations required to be performed by it to date under each material Company Contract and the Company is not in breach or default, and no event has occurred which with notice or lapse of time or both would constitute a breach or default or permit termination, modification or acceleration under any material Company Contract. Other than those set forth on Schedule 8(k) hereto or as approved by the Company’s Board of Directors after the Initial Closing Date, none of the material Company Contracts was entered into outside the ordinary course of business. For the purpose of this Agreement, “Company Contract” means any agreement, contract, lease, permit, consent, settlement, option, license, authorization, instrument or other arrangement (including any employee incentive plan or grant or award thereunder) (each, a “Contract”) which the Company is a party to or bound by or to which any of its assets is subject.
(l) Other than the Data Service Agreement, the Hosting Agreement, the Administrative Services Agreement, the Airtime Credits Agreement, the NAV CANADA Data Services Agreement, the Additional Investors Data Services Agreements and the HPOC Agreement, each as amended to date, (i) no Affiliate, shareholder, employee, officer or director of the Company or member of his or her immediate family (such Persons, collectively, “Related Parties”) is indebted to the Company, nor is the Company indebted (or committed to make loans or extend or guarantee credit) to any Related Party, in both cases, in an aggregate amount, together with any and all interest due thereunder, per any such Person greater than $10,000, except for accrued vacation pay, expense reimbursement and other accrued benefits under applicable employee benefit plans and policies of the Company in the ordinary course of business; (ii) to the Company’s knowledge, none of the Related Parties (other than any Affiliates) has any direct or indirect ownership interest in any firm or corporation with which the Company is affiliated or with which the Company has a business relationship, or any firm or corporation that competes with the Company, except that employees, members, officers or directors of the Company and members of their immediate families may own stock in publicly traded companies; and (iii) other than Contracts related to employment with or services to the Company set forth on Schedule 8(l) hereto or as approved by the Company’s Board of Directors after the Initial Closing Date, no Related Party is directly or indirectly interested in any material Company Contract or transaction or series of transactions with the Company in which the aggregate amount involved exceeds $10,000 (such Contracts and transactions, collectively, “Related Party Transactions”). All Related Party Transactions have been recorded in the books and records of the Company in accordance with applicable Law and applicable accounting standards and true, correct and complete copies of all agreements and documents relating to such Related Party Transactions and the Data Service Agreement, the Hosting Agreement and the Administrative Services Agreement have been provided to the Investor. For the purpose of this Agreement, (i) the “Data Service Agreement” means that certain Data Transmission Services Agreement No. IS-12-034 between the Company and Iridium, dated as of November 19, 2012; (ii) the “Hosting Agreement” means that certain Hosting Cost Reimbursement Agreement No. IS-12-033 between the Company and Iridium, dated as of November 19, 2012; (iii) the “Administrative Services Agreement” means that certain Amended and Restated Administrative Services Agreement between the Company and Iridium, dated as of November 19, 2012, (iv) the “Airtime Credits Agreement” means that certain Airtime Credits Agreement between the Company and Iridium dated as of October 17, 2012, (v) the “NAV CANADA Data Services Agreement” means that certain Services Agreement No. AIR-13-003 between the Company and NAV CANADA dated as of April 24, 2013, (vi) the “Additional Investors Data Services Agreements” means Services Agreements between the Company and each of Enav, IAA and Naviair on substantially the same terms as the NAV CANADA Data Services Agreement executed on or before the Second A&R Effective Date, and (vii) the “HPOC Agreement” means that certain Services Agreement No. AIR-13-007 between the Company and Iridium dated as of October 28, 2013 and Statement of Work No. 1 thereto for the Hosted Payload Operations Center.
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(m) The Company has delivered to the Investor a true, complete and correct copy of the Budget. The Budget has been prepared in good faith and based on the reasonable judgment of the Company. To the knowledge of the Company, no fact, occurrence or effect has occurred that would result in any material change to the Budget.
(n) The Company is and always has been a limited liability company treated as a disregarded entity for tax purposes. The Company has timely filed all tax returns (federal, state and local) required to be filed by it, and all such returns are true, correct and complete. All taxes, if any, shown to be due and payable on such returns, any assessments imposed, and all other taxes due and payable by the Company with regard to periods through the Initial Closing, if any, whether or not shown on any return, have been paid or have been adequately provided for and will be paid prior to the time they become delinquent. There are no material liens on any assets of the Company with respect to taxes. The Company has not been advised (a) that any of its returns, federal, state or other, have been or are being audited as of the date hereof, or (b) of any deficiency in assessment or proposed judgment to its federal, state or other taxes. There are no tax liabilities to be imposed upon the Company’s properties or assets as of the date of this Agreement that are not adequately provided for. The Company has no outstanding or pending agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or reassessment of, Taxes due from the Company. The Company has not executed or entered into a closing agreement under Section 7121 of the Internal Revenue Code or any similar provision of state, local or foreign Tax law, nor is the Company subject to any private letter ruling of the IRS or comparable ruling of any other taxing authority. The Company is not a party to any contract relating to the sharing, allocation or indemnification of taxes and does not have any liability for taxes of any person under Treasury Regulations or any similar state, local of foreign tax law, as a transferee or successor or otherwise. The Company will not be required to include in a taxable period ending after the Initial Closing taxable income attributable to income that accrued in a taxable period prior to the Initial Closing but was not recognized for tax purposes in such prior taxable period.
(o) Except as set forth in Schedule 8(o) hereto, the Company does not have any liability, obligation or arrangement to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement or the Operating Agreement.
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(p) The Company satisfies all requirements set forth in the Iridium Credit Agreement to be an Excluded Company (i.e., it is not required to become an Obligor under the Iridium Credit Agreement).
9. Indemnification.
(a) The Company shall indemnify, defend and hold harmless the Investor and its Affiliates and their respective officers, directors, agents, employees, partners, members, controlling persons and Affiliates (each, an “Investor Indemnified Party” and collectively, the “Investor Indemnified Parties”) to the fullest extent permitted by law from and against any and all losses, Claims, or written threats thereof (including, without limitation, any Claim by a third party), damages, diminution in value, expenses (including reasonable fees, disbursements and other charges of counsel) or other liabilities (collectively, “Losses”) resulting from or arising out of (a) any breach of any representation or warranty of the Company in this Agreement and (b) any breach of any covenant or agreement of the Company in this Agreement or the Operating Agreement. Notwithstanding the foregoing, the Losses shall not include costs, fees and expenses incurred by any Investor Indemnified Party connection with: (i) any violations of law or governmental regulations by such Investor Indemnified Party, (ii) any acts of willful misconduct or gross negligence by such Investor Indemnified Party, (iii) any material breach of this Agreement by such Investor Indemnified Party, or (iv) any actions against such Investor Indemnified Party by creditors of such Investor Indemnified Party or shareholders or creditors of such Investor Indemnified Party’s parent companies. The amount of any payment to any Investor Indemnified Party herewith in respect of any Loss shall be of sufficient amount to make such Indemnified Party whole for any diminution in value of the Interests held by the Investor or its Affiliates caused by such Loss.
(b) The Investor shall indemnify, defend and hold harmless the Company and its Affiliates and their respective officers, directors, agents, employees, partners, members, controlling persons and Affiliates (each, a “Company Indemnified Party” and collectively, the “Company Indemnified Parties”) to the fullest extent permitted by law from and against any and all Losses resulting from or arising out of (a) any breach of any representation or warranty of the Investor in this Agreement and (b) any breach of any covenant or agreement of the Investor in this Agreement or the Operating Agreement. Notwithstanding the foregoing, the Losses shall not include costs, fees and expenses incurred by any Company Indemnified Party connection with: (i) any violations of law or governmental regulations by such Company Indemnified Party, (ii) any acts of willful misconduct or gross negligence by such Company Indemnified Party, (iii) any material breach of this Agreement by such Company Indemnified Party, or (iv) any actions against such Investor Indemnified Party by creditors of such Company Indemnified Party or shareholders or creditors of such Company Indemnified Party’s parent companies. The amount of any payment to any Company Indemnified Party herewith in respect of any Loss shall be of sufficient amount to make such Company Indemnified Party whole for any diminution in value of the Interests held by the Members of the Company or their respective Affiliates caused by such Loss.
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(c) For the purpose of this Agreement, “Claim” means any action, suit, claim, hearing, inquiry, audit, complaint, demand, litigation, arbitration or legal, civil, criminal, administrative or arbitral action, proceeding or investigation.
(d) Promptly after an Investor Indemnified Party or Company Indemnified Party (each in such capacity, an “Indemnified Party”) receives notice or becomes aware pertaining to any Claim for which the Company or the Investor (each in such capacity, an “Indemnifying Party”) may be responsible under this Section 9, the Indemnified Party shall give written notice to the Indemnifying Party of such claim in reasonable detail; provided that the failure of the Indemnified Party to give such notice shall not affect such Indemnified Party’s rights under this Section 9 except to the extent the Indemnifying Party is actually and materially prejudiced by such failure to give such notice. The Indemnifying Party shall have the right to assume and conduct the defense of any Claim filed or instituted by any third party against the Indemnified Party (each, a “Third Party Claim”); provided that such Third Party Claim does not (i) relate to or arise in connection with any criminal proceeding or allegation or (ii) seeks any remedy other than payment of monetary damages; provided further that if the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to participate in the defense thereof at its own cost.
(e) No Indemnified Party shall be entitled to recover any Losses pursuant to this Section 9 in excess of the sum of the Investor's funded portion of the First Additional Investors Tranche Financing Amount and the Second Additional Investors Tranche Financing Amount. Except for any pending Claims that remain unresolved, no Indemnified Party shall be entitled to any indemnification under this Section 9 after the six-month anniversary of the earlier of (i) the closing of the Second Additional Investors Tranche Financing, and (ii) the Second Additional Investors Tranche Financing Final Tranche Date (as may be extended by mutual agreement of the Investor and the Company).
10. Assignment. The Investor shall at any time prior to the Initial Closing be entitled to transfer and assign any and all rights and obligations under this Agreement to a fully owned subsidiary, provided that the Investor shall remain liable for the fulfillment by such subsidiary of all obligations the Investor would otherwise have under this Agreement; provided, further that such transferee or assignee shall be bound by the terms of this Agreement as if it were the Investor party hereto, perform all obligations of the Investor hereunder and make the representations provided under Section 7 hereto.
11. Survival of Agreements, Representations and Warranties. All agreements, representations and warranties contained herein or made in writing by or on behalf of the Investor and the Company in connection with the transactions contemplated by this Agreement shall survive the execution of this Agreement and the Operating Agreement, any investigation at any time made by the Investor, the Company or on behalf of any of them and the sale and purchase of the Interests and payment therefor.
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12. Legends. The Investor consents to the placement of the legend contained on the signature page of the Operating Agreement and any other legend required or advisable, as determined by Company Counsel, by applicable law.
13. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original but all of which together shall constitute one (1) and the same instrument.
14. Amendments. Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated orally, but only with the written consent of the Investor and the Company.
15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
16. Jury Trial Waiver. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER TRANSACTION DOCUMENTS. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16.
17. Venue. Subject to Section 18, each of the parties hereto (i) consents to submit itself to the personal jurisdiction of (A) the United States Courts located in the State of Delaware in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement to the extent such court would have subject matter jurisdiction with respect to such dispute and (B) the courts located in the State of Delaware; (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction or venue by motion or other request for leave from any such court; (iii) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than such courts; (iv) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to a party at its address set forth in Section 13.2 of the Operating Agreement or at such other address of which a party shall have been notified pursuant thereto; and (v) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law.
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18. Dispute Resolution.
(a) The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place.
(b) Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of executives described above (“First Meeting”). Such closure shall not preclude continuing or later negotiations, if desired.
(c) All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
(d) At no time prior to the First Meeting shall either side initiate any litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of Paragraph 18(a) above.
(e) All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in Paragraphs 18(a) and (b) above are pending and for 15 calendar days thereafter. The parties will take such action, if any, required to effectuate such tolling.
(f) If the parties do not reach a resolution to the dispute within a period of thirty (30) days from the date of the First Meeting, then either party may pursue its remedies in accordance with applicable law.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
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In Witness Whereof, the parties hereto have executed This Subscription Agreement as of the date first above written.
Aireon LLC | ||
By: | /s/ Donald L. Thoma | |
Name: Donald L. Thoma | ||
Title: Chief Executive Officer |
Enav S.p.A. | ||
By: | /s/ Massimo Garbini | |
Name: Massimo Garbini | ||
Title: Sole Administrator |
Signature Page to Subscription Agreement
Exhibit A
Second Amended and Restated Limited Liability Company Agreement
Exhibit B
Tranche | Capital Contribution | Preferred Interests | ||||||
First Tranche Capital Contribution | $ | 25,510,204 | 3.84 | % | ||||
Second Tranche Capital Contribution | $ | 12,755,102 | 1.57 | % | ||||
Third Tranche Capital Contribution | $ | 16,836,734 | 3.22 | % | ||||
Fourth Tranche Capital Contribution | $ | 6,122,448 | 1.44 | % |
Exhibit B-1
For ease of reference, the following table sets forth the applicable post-redemption target percentages for each tranche as defined in the Operating Agreement (in the event of any conflict between the Operating Agreement and this table, the Operating Agreement shall control):
First Additional Investors Tranche Post-Redemption Enav Target Interest | 5.21 | % | ||
Second Additional Investors Tranche Post-Redemption Enav Target Interest | 2.60 | % | ||
Third Additional Investors Tranche Post-Redemption Enav Target Interest | 3.44 | % | ||
Fourth Additional Investors Tranche Post-Redemption Enav Target Interest | 1.25 | % | ||
Total | 12.5 | % |
Exhibit C
Pro Forma Balance Sheet as of October 31, 2013
Schedule 7(f) - The Investor’s Knowledge
Schedule 8(b) - Capitalization and Voting Rights
Schedule 8(d)(i) - Litigation
Schedule 8(d)(ii) - The Company’s Knowledge
Schedule 8(g) - Liabilities
Schedule 8(k) - Material Company Contracts
Schedule 8(l) - Related Party Transactions
Schedule 8(o) - Brokers
Execution Version
AIREON LLC
SUBSCRIPTION AGREEMENT
FOR INTERESTS
(Preferred Interests)
AIREON LLC
SUBSCRIPTION AGREEMENT
FOR
INTERESTS
(Preferred Interests)
THE OFFERING OF SECURITIES DESCRIBED HEREIN HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THIS OFFERING IS MADE PURSUANT TO RULE 506 OF REGULATION D UNDER SECTION 4(2) OF SAID ACT, WHICH EXEMPTS FROM SUCH REGISTRATION TRANSACTIONS NOT INVOLVING A PUBLIC OFFERING. FOR THIS REASON, THESE SECURITIES WILL BE SOLD ONLY TO INVESTORS WHO MEET CERTAIN MINIMUM SUITABILITY QUALIFICATIONS DESCRIBED HEREIN.
A SUBSCRIBER SHOULD BE PREPARED TO BEAR THE ECONOMIC RISK OF AN INVESTMENT IN THE COMPANY FOR AN INDEFINITE PERIOD OF TIME BECAUSE THE INTERESTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR THE LAWS OF ANY OTHER JURISDICTION, AND, THEREFORE, CANNOT BE SOLD UNLESS THEY ARE SUBSEQUENTLY REGISTERED OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THERE IS NO OBLIGATION OF THE ISSUER TO REGISTER THE INTERESTS UNDER THE SECURITIES ACT OR THE LAWS OF ANY OTHER JURISDICTION. TRANSFER OF THE INTERESTS IS ALSO RESTRICTED BY THE TERMS OF THE SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT RELATING THERETO.
NO ACTION HAS BEEN OR WILL BE TAKEN IN ANY JURISDICTION OUTSIDE THE UNITED STATES OF AMERICA THAT WOULD PERMIT AN OFFERING OF THE INTERESTS, OR POSSESSION OR DISTRIBUTION OF OFFERING MATERIALS IN CONNECTION WITH THE ISSUANCE OF THESE INTERESTS, IN ANY COUNTRY OR JURISDICTION WHERE ACTION FOR THAT PURPOSE IS REQUIRED. IT IS THE RESPONSIBILITY OF ANY PERSON WISHING TO PURCHASE ANY OF THESE INTERESTS TO SATISFY HIMSELF, HERSELF OR ITSELF AS TO FULL OBSERVANCE OF THE LAWS OR REGULATIONS OF ANY RELEVANT TERRITORY OUTSIDE THE UNITED STATES OF AMERICA IN CONNECTION WITH ANY SUCH PURCHASE, INCLUDING OBTAINING ANY REQUIRED GOVERNMENTAL OR OTHER CONSENTS OR OBSERVING ANY OTHER APPLICABLE FORMALITIES.
Interests in THE COMPANY are being offered to a limited number of institutional and sophisticated investors. Pursuant to section 11 of the Prospectus Order (Ministerial Order No. 1232 of October 22, 2007 on the prospectus requirements for offerings of a value above €2,500,000) issued in accordance with section 23(8) of the Danish Securities Trading Act (Consolidated Act No. 214 of April 2, 2008) the following types of offerings are exempted from prospectus registration requirements:
(a) offerings to accredited investors;
(b) offerings to non-accredited investors if the offer is directed at fewer than 100 private or legal persons in Denmark;
(c) offerings for which the value of each interest exceeds €50,000; or
(d) offerings where participation is conditional upon payment of more than €50,000 per investor.
This SUBSCRIPTION AGREEMENT may only be distributed to, and the offering may only be subscribed by, investors that satisfy one or more of the conditions set out above from (a) to (d). Accordingly, this SUBSCRIPTION AGREEMENT has not been and will not be registered with the Danish Financial Supervisory Authority or the Danish Commerce and Companies Agency under the relevant Danish acts and regulations on the offering in Denmark of Fund interests.
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SUBSCRIPTION AGREEMENT
This Subscription Agreement (this “Agreement”), dated as of December 20, 2013, is entered into by and among AIREON LLC, a Delaware limited liability company (the “Company”), and Naviair, an independent state owned company owned by the Kingdom of Denmark (the “Investor”), in connection with the Investor’s purchase of Preferred Interests in the Company (“Interests”) and admission as a Member of the Company pursuant to the terms of this Agreement and the Company’s Second Amended and Restated Limited Liability Company Agreement, in substantially the form set forth as Exhibit A attached hereto (the “Operating Agreement”), which shall be entered into on or before February 14, 2014 and shall amend and restate that certain Amended and Restated Limited Liability Company Agreement, dated as of November 19, 2012, as amended by Amendment No. 1 dated as of June 27, 2013 (as so amended, the “Original Operating Agreement”), by and among NAV CANADA Satellite, Inc., a wholly owned subsidiary of NAV CANADA ("NAV CANADA US Subsidiary"), NAV CANADA, Iridium Satellite LLC (“Iridium”), and the Company. Capitalized terms used but not defined herein shall have the meanings given them in the Operating Agreement.
The Investor hereby subscribes for Interests in the Company, and the Company and the Investor hereby agree as follows:
1. Subscription.
(a) First Additional Investors Tranche Financing.
Subject to the terms and conditions hereof, on or before February 14, 2014, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby subscribes for and agrees to purchase the amount of Preferred Interests convertible into the amount of the Fully Diluted Company Interests set forth opposite the heading “First Tranche Capital Contribution” set forth on Exhibit B attached hereto (the “First Tranche”) for the aggregate purchase price that corresponds to such First Tranche Capital Contribution amount set forth on Exhibit B attached hereto (the “Initial Purchase Price”).
(b) Second Additional Investors Tranche Financing.
(i) Subject to the terms and conditions hereof and the terms and conditions of the Operating Agreement, including Section 3.6.5.1 thereof, upon the satisfaction (or waiver by the Investor) of all of the conditions set forth in Section 3.6.5.1 of the Operating Agreement, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby subscribes for and agrees to purchase the amount of Preferred Interests convertible into the amount of the Fully Diluted Company Interests set forth opposite the heading “Second Tranche Capital Contribution” set forth on Exhibit B attached hereto for the aggregate purchase price that corresponds to such Second Tranche Capital Contribution amount set forth on Exhibit B attached hereto.
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(c) Third Additional Investors Tranche Financing.
(i) Subject to the terms and conditions hereof and the terms and conditions of the Operating Agreement, including Section 3.6.5.2 thereof, upon the satisfaction (or waiver by the Investor) of all of the conditions set forth in Section 3.6.5.2 of the Operating Agreement, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby subscribes for and agrees to purchase the amount of Preferred Interests convertible into the amount of the Fully Diluted Company Interests set forth opposite the heading “Third Tranche Capital Contribution” set forth on Exhibit B attached hereto for the aggregate purchase price that corresponds to such Third Tranche Capital Contribution amount set forth on Exhibit B attached hereto.
(d) Fourth Additional Investors Tranche Financing.
(i) Subject to the terms and conditions hereof and the terms and conditions of the Operating Agreement, including Section 3.6.5.3 thereof, upon the satisfaction (or waiver by the Investor) of all of the conditions set forth in Section 3.6.5.3 of the Operating Agreement, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby subscribes for and agrees to purchase the amount of Preferred Interests convertible into the amount of the Fully Diluted Company Interests set forth opposite the heading “Fourth Tranche Capital Contribution” set forth on Exhibit B attached hereto for the aggregate purchase price that corresponds to such Fourth Tranche Capital Contribution amount set forth on Exhibit B attached hereto.
(e) Closing of Purchase and Sale.
(i) The purchase and sale of the First Tranche (the “Initial Closing”) shall take place at the offices of the Company, as soon as practicable after satisfaction of the terms and conditions of this Agreement relating to the Initial Closing; provided, however, that if such day is a Saturday, Sunday or legal holiday (in the State of Delaware or in Copenhagen, Denmark), the Initial Closing shall take place on the following Business Day (such date, the “Initial Closing Date”). At the Initial Closing, (1) the Company shall deliver to the Investor the various certificates, instruments and documents referred to in Section 3 below, (2) the Investor shall deliver to the Company the various certificates, instruments and documents referred to in Section 4 below, (3) the Company shall issue to the Investor the applicable Preferred Interests being purchased by the Investor by appropriate notation in the Member Register, and (4) the Investor shall deliver to the Company, by wire transfer of immediately available funds to an account identified by the Company and communicated in writing to the Investor at least 15 (fifteen) days prior to the Initial Closing, the Initial Purchase Price. Notwithstanding the foregoing, if the purchase and sale of the First Tranche takes place at more than one closing, then the Company and the Investor shall only be required to deliver the deliverables set forth in foregoing clauses (1) and (2) at the first such closing.
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(ii) The purchase and sale of the Investor's portion of the Second Additional Investors Financing Interest, the Third Additional Investors Financing Interest, and the Fourth Additional Investors Financing Interest (each such purchase and sale, a “Subsequent Closing”, and the date of any such Subsequent Closing, a “Subsequent Closing Date”) shall take place at the offices of the Company in accordance with the terms and conditions herein and the Operating Agreement. At any Subsequent Closing, (1) the Company shall deliver to the Investor the various certificates, instruments and documents referred to in Section 5 below, (2) the Investor shall deliver to the Company the various certificates, instruments and documents referred to in Section 6 below, (3) the Company shall issue to the Investor the applicable Preferred Interests being purchased by the Investor in such Subsequent Closing by appropriate notation in the Member Register, and (4) the Investor shall deliver to the Company, by wire transfer of immediately available funds to an account identified by the Company and communicated in writing to the Investor at least 15 (fifteen) days prior to the Initial Closing, the applicable purchase price for such Subsequent Closing. Notwithstanding the foregoing, if the purchase and sale of the Second Additional Investors Financing Interest takes place at more than one closing, then the Company and the Investor shall only be required to deliver the deliverables set forth in foregoing clauses (1) and (2) at the first such closing for such Additional Investors Financing.
2. Operating Agreement. Concurrent with the Initial Closing, (i) the Company shall include a schedule to the Operating Agreement which reflects the admission of the Investor as a member of the Company and issuance of Preferred Interests issuable at the Initial Closing to the Investor, and (ii) the Investor shall execute a counterparty to the Operating Agreement in accordance with the terms and conditions thereof. The Parties agree and acknowledge that the Operating Agreement that will be executed at the Initial Closing by the Investor and the other parties shall have the form set forth in Exhibit A, provided that any change, amendment and/or modification to the text of the Operating Agreement attached herewith under Exhibit A, occurring, due and/or necessary for whatever reason prior to Initial Closing, other than the filling in of dates, changes to entity names to reflect assignment of subscription rights to subsidiaries and similar clerical matters, shall be immediately communicated to the Investor and shall be approved in writing by the Investor, which approval shall not unreasonably be withheld, denied or delayed.
3. Conditions to the Investor’s Obligations at Initial Closing. The obligations of the Investor under this Agreement to be performed at the Initial Closing are subject to the fulfillment on or before the Initial Closing of each of the following conditions by the Company (unless waived by the Investor in writing):
(a) Representations and Warranties. The representations and warranties by the Company contained in Section 8 of this Agreement that are qualified by reference to “material”, “materially”, “material adverse effect” or “Material Adverse Change” shall be true and correct in all respects when made and on and as of the Initial Closing (with the same effect as though such representations and warranties had been made on and as of the date of such Initial Closing), and all other representations and warranties by the Company contained in Section 8 of this Agreement shall be true and correct in all material respects when made and on and as of the Initial Closing (with the same effect as though such representations and warranties had been made on and as of the date of such Initial Closing), except for such representations and warranties which are made as of a certain date, which shall be true and correct in all respects or in all material respects, as applicable, as of such date.
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(b) Performance. The Company shall have performed and complied in all material respects with all agreements, obligations and conditions contained in this Agreement and the Operating Agreement that are required to be performed or complied with by it on or before the Initial Closing.
(c) Compliance Certificate. An officer of the Company shall deliver to the Investor at the Initial Closing a certificate signed by him on behalf of the Company stating that the conditions specified in Sections 3(a), 3(b) and 3(d) hereof have been fulfilled and stating that on the Initial Closing Date, to the Company’s knowledge, there exists no event, circumstance, condition, fact, effect or other matter, or series of events, circumstances, conditions, facts, effects or matters, individually or in the aggregate, that has had or would be reasonably expected to have a Material Adverse Change.
(d) Consents and Waivers. The Company shall have obtained all consents or waivers necessary to execute and perform its obligations under this Agreement and the Operating Agreement and to carry out the transactions contemplated hereby and thereby. All corporate and other action, including any amendments to the Operating Agreement, and any governmental filings necessary to effectuate the terms of this Agreement, the Operating Agreement and other agreements and instruments executed and delivered by the Company in connection herewith shall have been made or taken.
4. Conditions to Company’s Obligations at Initial Closing. The obligations of the Company to the Investor under this Agreement to be performed at the Initial Closing are subject to the fulfillment on or before the Initial Closing of each of the following conditions by the Investor (unless waived by the Company in writing):
(a) Representations and Warranties of the Investor. The representations and warranties by the Investor contained in Section 7 of this Agreement that are qualified by reference to “material”, “materially”, “material adverse effect” or “Material Adverse Change” shall be true and correct in all respects when made and on and as of the Initial Closing (with the same effect as though such representations and warranties had been made on and as of the Initial Closing) and all other representations and warranties by the Investor shall be true and correct in all material respects when made and on and as of the Initial Closing (with the same effect as though such representations and warranties had been made on and as of the date of the Initial Closing), except for such representations and warranties which are made as of a certain date, which shall be true and correct in all respects or in all material respects, as applicable, as of such date.
(b) Compliance Certificate from the Investor. The Company shall have received a certificate of the Investor signed by an authorized officer of the Investor to the effect that the conditions in Sections 4(a) and 4(c) have been satisfied.
(c) Consents and Waivers. The Investor shall have obtained all consents or waivers necessary to execute and perform its obligations under this Agreement and the Operating Agreement and to carry out the transactions contemplated hereby and thereby. All corporate and other action, including any amendments to the Operating Agreement, and any governmental filings necessary to effectuate the terms of this Agreement, the Operating Agreement and other agreements and instruments executed and delivered by the Investor in connection herewith shall have been made or taken.
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(d) Purchase Price. The Investor shall have funded to the Company the Initial Purchase Price.
5. Conditions to the Investor’s Obligations at any Subsequent Closing. The obligations of the Investor under this Agreement to be performed at any Subsequent Closing are subject to the fulfillment on or before such Subsequent Closing of each of the following conditions by the Company (unless waived by the Investor in writing):
(a) Representations and Warranties of the Company. The representations and warranties by the Company contained in Section 8 of this Agreement that are qualified by reference to “material”, “materially”, “material adverse effect” or “Material Adverse Change” shall be true and correct in all respects as of such Subsequent Closing Date, as if made on and as of such Subsequent Closing Date, and all other representations and warranties by the Company contained in Section 8 of this Agreement shall be true and correct in all material respects as of such Subsequent Closing Date, as if made on such Subsequent Closing Date, except for such representations and warranties which are made as of a certain date, which shall be true and correct in all respects or in all material respects, as applicable, as of such date.
(b) Performance. The Company shall have performed and complied in all material respects with all agreements, obligations and conditions contained in this Agreement, and the Operating Agreement that are required to be performed or complied with by it on or before such Subsequent Closing.
(c) Compliance Certificate. The Investor shall have received a certificate of the Company signed by an authorized officer of the Company to the effect that the conditions in Sections 5(a), 5(b) and 5(d) have been satisfied.
(d) Consents and Waivers. The Company shall have obtained all consents or waivers necessary to execute and perform its obligations under this Agreement and the Operating Agreement and to carry out such Subsequent Closing. All corporate and other action, including any amendments to the bylaws of the Company, and any governmental filings necessary to effectuate the terms of this Agreement, the Operating Agreement and other agreements and instruments executed and delivered by the Company in connection herewith shall have been made or taken.
(e) Operating Agreement Conditions. All of the conditions applicable to such Subsequent Closing set forth in the Operating Agreement, including the conditions set forth in Section 3.6.5 therein, have been satisfied.
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6. Conditions to Company’s Obligations at any Subsequent Closing. The obligations of the Company to the Investor under this Agreement to be performed at any Subsequent Closing are subject to the fulfillment on or before such Subsequent Closing of each of the following conditions by the Investor (unless waived by the Company in writing):
(a) Representations and Warranties of the Investor. The representations and warranties by the Investor contained in Section 7 of this Agreement that are qualified by reference to “material”, “materially”, “material adverse effect” or “Material Adverse Change” shall be true and correct in all respects as of such Subsequent Closing Date, as if made on and as of such Subsequent Closing Date, and all other representations and warranties by the Investor shall be true and correct in all material respects as of such Subsequent Closing Date, as if made on such Subsequent Closing Date, except for such representations and warranties which are made as of a certain date, which shall be true and correct in all respects or in all material respects, as applicable, as of such date.
(b) Compliance Certificate from the Investor. The Company shall have received a certificate of the Investor signed by an authorized officer of the Investor to the effect that the conditions in Sections 6(a) and 6(c) have been satisfied.
(c) Consents and Waivers. The Investor shall have obtained all consents or waivers necessary to execute and perform its obligations under this Agreement and the Operating Agreement and to carry out such Subsequent Closing. All corporate and other action, including any amendments to the Operating Agreement, and any governmental filings necessary to effectuate the terms of this Agreement, the Operating Agreement and other agreements and instruments executed and delivered by the Investor in connection herewith shall have been made or taken.
(d) Purchase Price. The Investor shall have funded to the Company the applicable purchase price for such Subsequent Closing.
7. The Investor’s Representations. In connection with the Investor’s purchase of the Preferred Interests, the Investor makes the following representations and warranties on which the Company is entitled to rely.
(a) The Investor is a Person duly organized, validly existing and in good standing under the laws of the Kingdom of Denmark and has all requisite power and authority to carry on its business as now conducted, to own and use the properties owned and used by it and to enter into this Agreement and the Operating Agreement. All action (corporate or other) on the part of the Investor for the authorization of the execution and delivery of this Agreement and the Operating Agreement and the performance of all obligations of the Investor hereunder, has been taken as of the date hereof, and thereunder, shall be taken as of the date thereof, and each such agreement constitutes, or shall constitute, its valid and legally binding obligation, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights and the general equity principles.
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(b) The Investor has received, read and understands the Operating Agreement and this Agreement. For purposes of the preceding sentence, the Operating Agreement shall mean the Operating Agreement in the form attached herewith under Exhibit A, and for the Subsequent Closings the most recent version of such document that was made available to the Investor through the time immediately prior to such Subsequent Closing.
(c) No representations or warranties have been made to the Investor by the Company, or any agent of said persons, other than as set forth in the Operating Agreement and this Agreement.
(d) The Investor is acquiring the Preferred Interests solely for the Investor’s own account and not directly or indirectly for the account of any other person whatsoever for investment and not with a view to, or for sale in connection with, any distribution of the Preferred Interests. The Investor does not have any contract, undertaking or arrangement with any person to sell, transfer or grant a participation to any person with respect to the Preferred Interests.
(e) The Investor is an “accredited investor” within the meaning of SEC Rule 501 of Regulation D under the Securities Act, as presently in effect.
(f) No suit, action, claim, investigation or other proceeding is pending or, to the Investor’s knowledge, is threatened against the Investor or its Affiliates which questions the validity of the Operating Agreement or this Agreement or any action taken or to be taken pursuant to the Operating Agreement or this Agreement. For the purpose of this Agreement, “knowledge” means, with respect to the Investor, the actual knowledge of those individuals set forth on Schedule 7(f) hereto after due inquiry.
(g) All action on the part of the Investor, its officers, directors and members necessary for the authorization of the execution and delivery of this Agreement and the Operating Agreement and the performance of all obligations of the Investor hereunder and thereunder has been taken as of the date hereof. The Operating Agreement and this Agreement create valid and binding obligations of the Investor and are enforceable against the Investor in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
8. Company’s Representations. The Company makes the following representations and warranties on which the Investor is entitled to rely:
(a) The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to carry on its business as now conducted and in which it proposes to engage in and to own and use the properties owned and used by it. The Company has made available to the Investor a complete and correct copy of its certificate of formation and the Original Operating Agreement, each as amended to date (the “Company Organizational Documents”).
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(b) Capitalization and Voting Rights.
(i) Immediately prior to the Initial Closing, the Fully Diluted Company Interests consist of (i) 81.3% issued and outstanding Common Interests, all of which are held by Iridium and (ii) 18.7% issued and outstanding Preferred Interests, all of which are held by NAV CANADA US Subsidiary.
(ii) At the Initial Closing and after giving effect to the transactions contemplated herein occurring on or prior to the Initial Closing Date, the Fully Diluted Company Interests will consist of (i) 75.19% issued and outstanding Common Interests, all of which are held by Iridium and (ii) 24.81% issued and outstanding Preferred Interests, which are held by the Investor, NAV CANADA US Subsidiary, Enav and the IAA in the following percentages:
The Investor – 1.84%
NAV CANADA US Subsidiary – 17.29%
Enav – 3.84%
IAA – 1.84%
(iii) The Company does not own, directly or indirectly, any equity, membership interest, partnership interest, joint venture interest, or other equity or voting interests in, or any interest convertible into, exercisable or exchangeable for any of the foregoing, any Person.
Except as set forth in clause (ii) above, at the Initial Closing or the last Subsequent Closing contemplated herein, as applicable, there are or will be no other Interests or securities (including interest appreciation, “phantom interest”, interest participation or similar rights) of, or in respect of, the Company of any class issued, reserved for issuance or outstanding. Except as set forth on Schedule 8(b) hereto, at the Initial Closing or the last Subsequent Closing, as applicable, there are or will be no outstanding options, warrants, rights (including exchange, conversion, subscription, purchase or preemptive rights), agreements or obligations for the purchase or acquisition from the Company of any Interests or that could require the Company to issue, sell or otherwise cause to become outstanding, purchase or dispose of any Interests (other than pursuant to this Agreement, the Subscription Agreements between the Company and each of NAV CANADA US Subsidiary, Enav and IAA, and the Operating Agreement). At the Initial Closing or the last Subsequent Closing, as applicable, neither the Company nor, to the Company’s knowledge, any of its members or directors, is or will be a party or subject to any agreement, commitment or understanding (including any voting trusts or proxies), which affects or relates to the voting or giving of written consents with respect to any Interest or security of the Company or by a Director of the Company (other than the Operating Agreement).
(c) The execution, delivery and performance of the Operating Agreement and this Agreement, the consummation of all of the transactions contemplated hereby and thereby do not and will not conflict with or result in any violation of or default under any provision of any other agreement or instrument to which the Company is a party or any license, permit, franchise, judgment, order, writ or decree, or any law, statute, rule or regulation, applicable to the Company.
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(d) Except as set forth on Schedule 8(d)(i) hereto, no suit, action, claim, investigation or other proceeding is pending or, to the Company’s knowledge is threatened against the Company or its Affiliates which either (x) questions the validity of the Operating Agreement or this Agreement or any action taken or to be taken pursuant to the Operating Agreement or this Agreement; or (y) could reasonably be expected to have a material adverse effect on the Company, its business, operations, assets, properties, conditions (financial or otherwise) or investments. For the purpose of this Agreement, “knowledge” means, with respect to the Company, the actual knowledge of those individuals set forth on Schedule 8(d)(ii) hereto after due inquiry.
(e) The Preferred Interests being purchased from the Company by the Investor hereunder, when sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly authorized, issued, fully paid and nonassessable, will conform to the description of Preferred Interests contained in the Company’s Operating Agreement, will have been issued, sold and delivered in compliance with all applicable federal and state laws concerning the issuance and sale of securities and will be free and clear of (i) restrictions on transfer, other than restrictions on transfer under this Agreement and the Operating Agreement, and under applicable regional, supranational, federal, state, provincial, foreign or local law, statute, rule, regulation, order, ordinance, judgment, code or decree (each a “Law” and, collectively, “Laws”), and (ii) Taxes, liens, warrants, purchase rights, contracts, commitments, equities, demands and claims whatsoever. For the purpose of this Agreement, “Tax” means any federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Section 59A of the Internal Revenue Code of 1986, as amended), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, production personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated or other tax of any kind whatsoever, including any interest, penalty or addition thereto and any interest, penalties and additions in respect of such interest, penalties and additions, whether disputed or not.
(f) All action on the part of the Company, its officers, directors and members necessary for the authorization of the execution and delivery of this Agreement and the Operating Agreement and the performance of all obligations of the Company hereunder and thereunder (including the authorization and issuance of the Preferred Interests being sold hereunder) has been taken as of the date hereof. The Operating Agreement and this Agreement create valid and binding obligations of the Company and are enforceable against the Company in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
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(g) The Company has delivered to the Investor a pro forma balance sheet of the Company as of October 31, 2013 in the form attached hereto as Exhibit C (the “Balance Sheet”). The Balance Sheet has been prepared from and is in accordance with the Company’s books and records and fairly presents in all material respects the assets and liabilities of the Company as of the date thereof. Except as set forth in the Balance Sheet or as set forth on Schedule 8(g), as of the Initial Closing Date, the Company has no material liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to October 31, 2013 and (ii) liabilities that, individually and in the aggregate, are not material to the financial condition or operating results of the Company.
(h) Assuming the representations and warranties of the Investor in this Agreement are true and accurate, the offer, sale and issuance of the Preferred Interests as contemplated by this Agreement are exempt from the registration requirements of the Securities Act, and the qualification or registration requirements of applicable blue sky laws. Neither the Company nor any authorized agent acting on its behalf has offered or will offer or sell any securities, or has taken or will take any other action (including any offering of any securities of the Company under circumstances that would require under the Securities Act the integration of such offering with the offering and sale of the Preferred Interests being acquired hereunder), that would cause the loss of such exemptions.
(i) The Company is not in violation of any provision of the Company Organizational Documents. No third party (including Governmental Authority) notices, consents or waivers are required to be obtained or made in connection with (i) the execution, delivery and performance of this Agreement or the Operating Agreement which has not been obtained or (ii) the consummation of the transactions contemplated by this Agreement or the Operating Agreement.
(j) The Company is in compliance in all material respects with all applicable Laws. The Company has not received any notice of, and to the Company’s knowledge, no investigation or review is in process or threatened by any Governmental Authority with respect to, any violation or alleged violation of any applicable Law. For the purpose of this Agreement, “Governmental Authority” means any supranational, national, state, provincial, local, foreign or other political subdivision thereof or entity, department, agency or instrumentality exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to the government.
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(k) The Company is in compliance in all material respects with all Company Contracts. Each material Company Contract is a legal, valid and binding agreement, assuming the due authorization, execution and delivery thereof by the third-party counter-parties thereto, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting enforcement of creditors’ rights and to general equity principles, and each is in full force and effect on identical terms following the consummation of the transactions contemplated hereby. To the Company’s knowledge, no party to any material Company Contract other than the Company is in breach or default, and no event has occurred which with notice or lapse of time or both would constitute a breach or default or permit termination, modification or acceleration under any material Company Contract. The Company has performed all of its obligations required to be performed by it to date under each material Company Contract and the Company is not in breach or default, and no event has occurred which with notice or lapse of time or both would constitute a breach or default or permit termination, modification or acceleration under any material Company Contract. Other than those set forth on Schedule 8(k) hereto or as approved by the Company’s Board of Directors after the Initial Closing Date, none of the material Company Contracts was entered into outside the ordinary course of business. For the purpose of this Agreement, “Company Contract” means any agreement, contract, lease, permit, consent, settlement, option, license, authorization, instrument or other arrangement (including any employee incentive plan or grant or award thereunder) (each, a “Contract”) which the Company is a party to or bound by or to which any of its assets is subject.
(l) Other than the Data Service Agreement, the Hosting Agreement, the Administrative Services Agreement, the Airtime Credits Agreement, the NAV CANADA Data Services Agreement, the Additional Investors Data Services Agreements and the HPOC Agreement, each as amended to date, (i) no Affiliate, shareholder, employee, officer or director of the Company or member of his or her immediate family (such Persons, collectively, “Related Parties”) is indebted to the Company, nor is the Company indebted (or committed to make loans or extend or guarantee credit) to any Related Party, in both cases, in an aggregate amount, together with any and all interest due thereunder, per any such Person greater than $10,000, except for accrued vacation pay, expense reimbursement and other accrued benefits under applicable employee benefit plans and policies of the Company in the ordinary course of business; (ii) to the Company’s knowledge, none of the Related Parties (other than any Affiliates) has any direct or indirect ownership interest in any firm or corporation with which the Company is affiliated or with which the Company has a business relationship, or any firm or corporation that competes with the Company, except that employees, members, officers or directors of the Company and members of their immediate families may own stock in publicly traded companies; and (iii) other than Contracts related to employment with or services to the Company set forth on Schedule 8(l) hereto or as approved by the Company’s Board of Directors after the Initial Closing Date, no Related Party is directly or indirectly interested in any material Company Contract or transaction or series of transactions with the Company in which the aggregate amount involved exceeds $10,000 (such Contracts and transactions, collectively, “Related Party Transactions”). All Related Party Transactions have been recorded in the books and records of the Company in accordance with applicable Law and applicable accounting standards and true, correct and complete copies of all agreements and documents relating to such Related Party Transactions and the Data Service Agreement, the Hosting Agreement and the Administrative Services Agreement have been provided to the Investor. For the purpose of this Agreement, (i) the “Data Service Agreement” means that certain Data Transmission Services Agreement No. IS-12-034 between the Company and Iridium, dated as of November 19, 2012; (ii) the “Hosting Agreement” means that certain Hosting Cost Reimbursement Agreement No. IS-12-033 between the Company and Iridium, dated as of November 19, 2012; (iii) the “Administrative Services Agreement” means that certain Amended and Restated Administrative Services Agreement between the Company and Iridium, dated as of November 19, 2012, (iv) the “Airtime Credits Agreement” means that certain Airtime Credits Agreement between the Company and Iridium dated as of October 17, 2012, (v) the “NAV CANADA Data Services Agreement” means that certain Services Agreement No. AIR-13-003 between the Company and NAV CANADA dated as of April 24, 2013, (vi) the “Additional Investors Data Services Agreements” means Services Agreements between the Company and each of Enav, IAA and Naviair on substantially the same terms as the NAV CANADA Data Services Agreement executed on or before the Second A&R Effective Date, and (vii) the “HPOC Agreement” means that certain Services Agreement No. AIR-13-007 between the Company and Iridium dated as of October 28, 2013 and Statement of Work No. 1 thereto for the Hosted Payload Operations Center.
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(m) The Company has delivered to the Investor a true, complete and correct copy of the Budget. The Budget has been prepared in good faith and based on the reasonable judgment of the Company. To the knowledge of the Company, no fact, occurrence or effect has occurred that would result in any material change to the Budget.
(n) The Company is and always has been a limited liability company treated as a disregarded entity for tax purposes. The Company has timely filed all tax returns (federal, state and local) required to be filed by it, and all such returns are true, correct and complete. All taxes, if any, shown to be due and payable on such returns, any assessments imposed, and all other taxes due and payable by the Company with regard to periods through the Initial Closing, if any, whether or not shown on any return, have been paid or have been adequately provided for and will be paid prior to the time they become delinquent. There are no material liens on any assets of the Company with respect to taxes. The Company has not been advised (a) that any of its returns, federal, state or other, have been or are being audited as of the date hereof, or (b) of any deficiency in assessment or proposed judgment to its federal, state or other taxes. There are no tax liabilities to be imposed upon the Company’s properties or assets as of the date of this Agreement that are not adequately provided for. The Company has no outstanding or pending agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or reassessment of, Taxes due from the Company. The Company has not executed or entered into a closing agreement under Section 7121 of the Internal Revenue Code or any similar provision of state, local or foreign Tax law, nor is the Company subject to any private letter ruling of the IRS or comparable ruling of any other taxing authority. The Company is not a party to any contract relating to the sharing, allocation or indemnification of taxes and does not have any liability for taxes of any person under Treasury Regulations or any similar state, local of foreign tax law, as a transferee or successor or otherwise. The Company will not be required to include in a taxable period ending after the Initial Closing taxable income attributable to income that accrued in a taxable period prior to the Initial Closing but was not recognized for tax purposes in such prior taxable period.
(o) Except as set forth in Schedule 8(o) hereto, the Company does not have any liability, obligation or arrangement to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement or the Operating Agreement.
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(p) The Company satisfies all requirements set forth in the Iridium Credit Agreement to be an Excluded Company (i.e., it is not required to become an Obligor under the Iridium Credit Agreement).
9. Indemnification.
(a) The Company shall indemnify, defend and hold harmless the Investor and its Affiliates and their respective officers, directors, agents, employees, partners, members, controlling persons and Affiliates (each, an “Investor Indemnified Party” and collectively, the “Investor Indemnified Parties”) to the fullest extent permitted by law from and against any and all losses, Claims, or written threats thereof (including, without limitation, any Claim by a third party), damages, diminution in value, expenses (including reasonable fees, disbursements and other charges of counsel) or other liabilities (collectively, “Losses”) resulting from or arising out of (a) any breach of any representation or warranty of the Company in this Agreement and (b) any breach of any covenant or agreement of the Company in this Agreement or the Operating Agreement. Notwithstanding the foregoing, the Losses shall not include costs, fees and expenses incurred by any Investor Indemnified Party connection with: (i) any violations of law or governmental regulations by such Investor Indemnified Party, (ii) any acts of willful misconduct or gross negligence by such Investor Indemnified Party, (iii) any material breach of this Agreement by such Investor Indemnified Party, or (iv) any actions against such Investor Indemnified Party by creditors of such Investor Indemnified Party or shareholders or creditors of such Investor Indemnified Party’s parent companies. The amount of any payment to any Investor Indemnified Party herewith in respect of any Loss shall be of sufficient amount to make such Indemnified Party whole for any diminution in value of the Interests held by the Investor or its Affiliates caused by such Loss.
(b) The Investor shall indemnify, defend and hold harmless the Company and its Affiliates and their respective officers, directors, agents, employees, partners, members, controlling persons and Affiliates (each, a “Company Indemnified Party” and collectively, the “Company Indemnified Parties”) to the fullest extent permitted by law from and against any and all Losses resulting from or arising out of (a) any breach of any representation or warranty of the Investor in this Agreement and (b) any breach of any covenant or agreement of the Investor in this Agreement or the Operating Agreement. Notwithstanding the foregoing, the Losses shall not include costs, fees and expenses incurred by any Company Indemnified Party connection with: (i) any violations of law or governmental regulations by such Company Indemnified Party, (ii) any acts of willful misconduct or gross negligence by such Company Indemnified Party, (iii) any material breach of this Agreement by such Company Indemnified Party, or (iv) any actions against such Investor Indemnified Party by creditors of such Company Indemnified Party or shareholders or creditors of such Company Indemnified Party’s parent companies. The amount of any payment to any Company Indemnified Party herewith in respect of any Loss shall be of sufficient amount to make such Company Indemnified Party whole for any diminution in value of the Interests held by the Members of the Company or their respective Affiliates caused by such Loss.
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(c) For the purpose of this Agreement, “Claim” means any action, suit, claim, hearing, inquiry, audit, complaint, demand, litigation, arbitration or legal, civil, criminal, administrative or arbitral action, proceeding or investigation.
(d) Promptly after an Investor Indemnified Party or Company Indemnified Party (each in such capacity, an “Indemnified Party”) receives notice or becomes aware pertaining to any Claim for which the Company or the Investor (each in such capacity, an “Indemnifying Party”) may be responsible under this Section 9, the Indemnified Party shall give written notice to the Indemnifying Party of such claim in reasonable detail; provided that the failure of the Indemnified Party to give such notice shall not affect such Indemnified Party’s rights under this Section 9 except to the extent the Indemnifying Party is actually and materially prejudiced by such failure to give such notice. The Indemnifying Party shall have the right to assume and conduct the defense of any Claim filed or instituted by any third party against the Indemnified Party (each, a “Third Party Claim”); provided that such Third Party Claim does not (i) relate to or arise in connection with any criminal proceeding or allegation or (ii) seeks any remedy other than payment of monetary damages; provided further that if the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to participate in the defense thereof at its own cost.
(e) No Indemnified Party shall be entitled to recover any Losses pursuant to this Section 9 in excess of the sum of the Investor's funded portion of the First Additional Investors Tranche Financing Amount and the Second Additional Investors Tranche Financing Amount. Except for any pending Claims that remain unresolved, no Indemnified Party shall be entitled to any indemnification under this Section 9 after the six-month anniversary of the earlier of (i) the closing of the Second Additional Investors Tranche Financing, and (ii) the Second Additional Investors Tranche Financing Final Tranche Date (as may be extended by mutual agreement of the Investor and the Company).
10. Assignment. The Investor shall at any time prior to the Initial Closing be entitled to transfer and assign any and all rights and obligations under this Agreement to a fully owned subsidiary, provided that the Investor shall remain liable for the fulfillment by such subsidiary of all obligations the Investor would otherwise have under this Agreement; provided, further that such transferee or assignee shall be bound by the terms of this Agreement as if it were the Investor party hereto, perform all obligations of the Investor hereunder and make the representations provided under Section 7 hereto.
11. Survival of Agreements, Representations and Warranties. All agreements, representations and warranties contained herein or made in writing by or on behalf of the Investor and the Company in connection with the transactions contemplated by this Agreement shall survive the execution of this Agreement and the Operating Agreement, any investigation at any time made by the Investor, the Company or on behalf of any of them and the sale and purchase of the Interests and payment therefor.
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12. Legends. The Investor consents to the placement of the legend contained on the signature page of the Operating Agreement and any other legend required or advisable, as determined by Company Counsel, by applicable law.
13. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original but all of which together shall constitute one (1) and the same instrument.
14. Amendments. Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated orally, but only with the written consent of the Investor and the Company.
15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
16. Jury Trial Waiver. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER TRANSACTION DOCUMENTS. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16.
17. Venue. Subject to Section 18, each of the parties hereto (i) consents to submit itself to the personal jurisdiction of (A) the United States Courts located in the State of Delaware in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement to the extent such court would have subject matter jurisdiction with respect to such dispute and (B) the courts located in the State of Delaware; (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction or venue by motion or other request for leave from any such court; (iii) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than such courts; (iv) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to a party at its address set forth in Section 13.2 of the Operating Agreement or at such other address of which a party shall have been notified pursuant thereto; and (v) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law.
18. Dispute Resolution.
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(a) The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place.
(b) Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of executives described above (“First Meeting”). Such closure shall not preclude continuing or later negotiations, if desired.
(c) All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
(d) At no time prior to the First Meeting shall either side initiate any litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of Paragraph 18(a) above.
(e) All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in Paragraphs 18(a) and (b) above are pending and for 15 calendar days thereafter. The parties will take such action, if any, required to effectuate such tolling.
(f) If the parties do not reach a resolution to the dispute within a period of thirty (30) days from the date of the First Meeting, then either party may pursue its remedies in accordance with applicable law.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
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In Witness Whereof, the parties hereto have executed This Subscription Agreement as of the date first above written.
Aireon LLC | ||
By: | /s/ Donald L. Thoma | |
Name: Donald L. Thoma | ||
Title: Chief Executive Officer |
Naviair | ||
By: | /s/ Morten Dambæk | |
Name: Morten Dambæk | ||
Title: CEO |
Signature Page to Subscription Agreement
Exhibit A
Second Amended and Restated Limited Liability Company Agreement
Exhibit B
Tranche | Capital Contribution | Preferred Interests | ||||||
First Tranche Capital Contribution | $ | 12,244,898 | 1.84 | % | ||||
Second Tranche Capital Contribution | $ | 6,122,449 | 0.75 | % | ||||
Third Tranche Capital Contribution | $ | 8,081,633 | 1.55 | % | ||||
Fourth Tranche Capital Contribution | $ | 2,938,776 | 0.69 | % |
Exhibit B-1
For ease of reference, the following table sets forth the applicable post-redemption target percentages for each tranche as defined in the Operating Agreement (in the event of any conflict between the Operating Agreement and this table, the Operating Agreement shall control):
First Additional Investors Tranche Post-Redemption Naviair Target Interest | 2.5 | % | ||
Second Additional Investors Tranche Post-Redemption Naviair Target Interest | 1.25 | % | ||
Third Additional Investors Tranche Post-Redemption Naviair Target Interest | 1.65 | % | ||
Fourth Additional Investors Tranche Post-Redemption Naviair Target Interest | 0.6 | % | ||
Total | 6.0 | % |
Exhibit C
Pro Forma Balance Sheet as of October 31, 2013
Schedule 7(f) - The Investor’s Knowledge
Schedule 8(b) - Capitalization and Voting Rights
Schedule 8(d)(i) - Litigation
Schedule 8(d)(ii) - The Company’s Knowledge
Schedule 8(g) - Liabilities
Schedule 8(k) - Material Company Contracts
Schedule 8(l) - Related Party Transactions
Schedule 8(o) - Brokers
Execution Version
AIREON LLC
SUBSCRIPTION AGREEMENT
FOR INTERESTS
(Preferred Interests)
AIREON LLC
SUBSCRIPTION AGREEMENT
FOR
INTERESTS
(Preferred Interests)
THE OFFERING OF SECURITIES DESCRIBED HEREIN HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THIS OFFERING IS MADE PURSUANT TO RULE 506 OF REGULATION D UNDER SECTION 4(2) OF SAID ACT, WHICH EXEMPTS FROM SUCH REGISTRATION TRANSACTIONS NOT INVOLVING A PUBLIC OFFERING. FOR THIS REASON, THESE SECURITIES WILL BE SOLD ONLY TO INVESTORS WHO MEET CERTAIN MINIMUM SUITABILITY QUALIFICATIONS DESCRIBED HEREIN.
A SUBSCRIBER SHOULD BE PREPARED TO BEAR THE ECONOMIC RISK OF AN INVESTMENT IN THE COMPANY FOR AN INDEFINITE PERIOD OF TIME BECAUSE THE INTERESTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR THE LAWS OF ANY OTHER JURISDICTION, AND, THEREFORE, CANNOT BE SOLD UNLESS THEY ARE SUBSEQUENTLY REGISTERED OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THERE IS NO OBLIGATION OF THE ISSUER TO REGISTER THE INTERESTS UNDER THE SECURITIES ACT OR THE LAWS OF ANY OTHER JURISDICTION. TRANSFER OF THE INTERESTS IS ALSO RESTRICTED BY THE TERMS OF THE SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT RELATING THERETO.
NO ACTION HAS BEEN OR WILL BE TAKEN IN ANY JURISDICTION OUTSIDE THE UNITED STATES OF AMERICA THAT WOULD PERMIT AN OFFERING OF THE INTERESTS, OR POSSESSION OR DISTRIBUTION OF OFFERING MATERIALS IN CONNECTION WITH THE ISSUANCE OF THESE INTERESTS, IN ANY COUNTRY OR JURISDICTION WHERE ACTION FOR THAT PURPOSE IS REQUIRED. IT IS THE RESPONSIBILITY OF ANY PERSON WISHING TO PURCHASE ANY OF THESE INTERESTS TO SATISFY HIMSELF, HERSELF OR ITSELF AS TO FULL OBSERVANCE OF THE LAWS OR REGULATIONS OF ANY RELEVANT TERRITORY OUTSIDE THE UNITED STATES OF AMERICA IN CONNECTION WITH ANY SUCH PURCHASE, INCLUDING OBTAINING ANY REQUIRED GOVERNMENTAL OR OTHER CONSENTS OR OBSERVING ANY OTHER APPLICABLE FORMALITIES.
This DOCUMENT and the information contained herein is confidential and has been prepared and is intended for use on a confidential basis solely by those persons in Ireland to whom it is sent by. It may not be reproduced, redistributed or passed on to any other persons or published in whole or in any part for any purpose. It does not constitute an invitation to the public in Ireland or any section thereof to subscribe for or purchase any shares or other securities in any company and accordingly is not a prospectus within the meaning of the Prospectus Directive Regulations.
The Offer is being extended to a small number of persons resident in the Republic of Ireland by way of a private placement. Neither this document nor the Offer constitute an invitation to the public in Ireland or any section thereof to subscribe for or purchase INTERESTS and accordingly is not a prospectus within the meaning of the Prospectus Directive Regulations.
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SUBSCRIPTION AGREEMENT
This Subscription Agreement (this “Agreement”), dated as of December 20, 2013, is entered into by and among AIREON LLC, a Delaware limited liability company (the “Company”), and Irish Aviation Authority Limited, a company organized under the laws of the Republic of Ireland (the “Investor”), in connection with the Investor’s purchase of Preferred Interests in the Company (“Interests”) and admission as a Member of the Company pursuant to the terms of this Agreement and the Company’s Second Amended and Restated Limited Liability Company Agreement, in substantially the form set forth as Exhibit A attached hereto (the “Operating Agreement”), which shall be entered into on or before February 14, 2014 and shall amend and restate that certain Amended and Restated Limited Liability Company Agreement, dated as of November 19, 2012, as amended by Amendment No. 1 dated as of June 27, 2013 (as so amended, the “Original Operating Agreement”), by and among NAV CANADA Satellite, Inc., a wholly owned subsidiary of NAV CANADA ("NAV CANADA US Subsidiary"), NAV CANADA, Iridium Satellite LLC (“Iridium”), and the Company. Capitalized terms used but not defined herein shall have the meanings given them in the Operating Agreement.
The Investor hereby subscribes for Interests in the Company, and the Company and the Investor hereby agree as follows:
1. Subscription.
(a) First Additional Investors Tranche Financing.
Subject to the terms and conditions hereof, on or before February 14, 2014, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby subscribes for and agrees to purchase the amount of Preferred Interests convertible into the amount of the Fully Diluted Company Interests set forth opposite the heading “First Tranche Capital Contribution” set forth on Exhibit B attached hereto (the “First Tranche”) for the aggregate purchase price that corresponds to such First Tranche Capital Contribution amount set forth on Exhibit B attached hereto (the “Initial Purchase Price”).
(b) Second Additional Investors Tranche Financing.
(i) Subject to the terms and conditions hereof and the terms and conditions of the Operating Agreement, including Section 3.6.5.1 thereof, upon the satisfaction (or waiver by the Investor) of all of the conditions set forth in Section 3.6.5.1 of the Operating Agreement, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby subscribes for and agrees to purchase the amount of Preferred Interests convertible into the amount of the Fully Diluted Company Interests set forth opposite the heading “Second Tranche Capital Contribution” set forth on Exhibit B attached hereto for the aggregate purchase price that corresponds to such Second Tranche Capital Contribution amount set forth on Exhibit B attached hereto.
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(c) Third Additional Investors Tranche Financing.
(i) Subject to the terms and conditions hereof and the terms and conditions of the Operating Agreement, including Section 3.6.5.2 thereof, upon the satisfaction (or waiver by the Investor) of all of the conditions set forth in Section 3.6.5.2 of the Operating Agreement, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby subscribes for and agrees to purchase the amount of Preferred Interests convertible into the amount of the Fully Diluted Company Interests set forth opposite the heading “Third Tranche Capital Contribution” set forth on Exhibit B attached hereto for the aggregate purchase price that corresponds to such Third Tranche Capital Contribution amount set forth on Exhibit B attached hereto.
(d) Fourth Additional Investors Tranche Financing.
(i) Subject to the terms and conditions hereof and the terms and conditions of the Operating Agreement, including Section 3.6.5.3 thereof, upon the satisfaction (or waiver by the Investor) of all of the conditions set forth in Section 3.6.5.3 of the Operating Agreement, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby subscribes for and agrees to purchase the amount of Preferred Interests convertible into the amount of the Fully Diluted Company Interests set forth opposite the heading “Fourth Tranche Capital Contribution” set forth on Exhibit B attached hereto for the aggregate purchase price that corresponds to such Fourth Tranche Capital Contribution amount set forth on Exhibit B attached hereto.
(e) Closing of Purchase and Sale.
(i) The purchase and sale of the First Tranche (the “Initial Closing”) shall take place at the offices of the Company, as soon as practicable after satisfaction of the terms and conditions of this Agreement relating to the Initial Closing; provided, however, that if such day is a Saturday, Sunday or legal holiday (in the State of Delaware or in Dublin, Ireland), the Initial Closing shall take place on the following Business Day (such date, the “Initial Closing Date”). At the Initial Closing, (1) the Company shall deliver to the Investor the various certificates, instruments and documents referred to in Section 3 below, (2) the Investor shall deliver to the Company the various certificates, instruments and documents referred to in Section 4 below, (3) the Company shall issue to the Investor the applicable Preferred Interests being purchased by the Investor by appropriate notation in the Member Register, and (4) the Investor shall deliver to the Company, by wire transfer of immediately available funds to an account identified by the Company and communicated in writing to the Investor at least 15 (fifteen) days prior to the Initial Closing, the Initial Purchase Price. Notwithstanding the foregoing, if the purchase and sale of the First Tranche takes place at more than one closing, then the Company and the Investor shall only be required to deliver the deliverables set forth in foregoing clauses (1) and (2) at the first such closing.
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(ii) The purchase and sale of the Investor's portion of the Second Additional Investors Financing Interest, the Third Additional Investors Financing Interest, and the Fourth Additional Investors Financing Interest (each such purchase and sale, a “Subsequent Closing”, and the date of any such Subsequent Closing, a “Subsequent Closing Date”) shall take place at the offices of the Company in accordance with the terms and conditions herein and the Operating Agreement. At any Subsequent Closing, (1) the Company shall deliver to the Investor the various certificates, instruments and documents referred to in Section 5 below, (2) the Investor shall deliver to the Company the various certificates, instruments and documents referred to in Section 6 below, (3) the Company shall issue to the Investor the applicable Preferred Interests being purchased by the Investor in such Subsequent Closing by appropriate notation in the Member Register, and (4) the Investor shall deliver to the Company, by wire transfer of immediately available funds to an account identified by the Company and communicated in writing to the Investor at least 15 (fifteen) days prior to the Initial Closing, the applicable purchase price for such Subsequent Closing. Notwithstanding the foregoing, if the purchase and sale of the Second Additional Investors Financing Interest takes place at more than one closing, then the Company and the Investor shall only be required to deliver the deliverables set forth in foregoing clauses (1) and (2) at the first such closing for such Additional Investors Financing.
2. Operating Agreement. Concurrent with the Initial Closing, (i) the Company shall include a schedule to the Operating Agreement which reflects the admission of the Investor as a member of the Company and issuance of Preferred Interests issuable at the Initial Closing to the Investor, and (ii) the Investor shall execute a counterparty to the Operating Agreement in accordance with the terms and conditions thereof. The Parties agree and acknowledge that the Operating Agreement that will be executed at the Initial Closing by the Investor and the other parties shall have the form set forth in Exhibit A, provided that any change, amendment and/or modification to the text of the Operating Agreement attached herewith under Exhibit A, occurring, due and/or necessary for whatever reason prior to Initial Closing, other than the filling in of dates, changes to entity names to reflect assignment of subscription rights to subsidiaries and similar clerical matters, shall be immediately communicated to the Investor and shall be approved in writing by the Investor, which approval shall not unreasonably be withheld, denied or delayed.
3. Conditions to the Investor’s Obligations at Initial Closing. The obligations of the Investor under this Agreement to be performed at the Initial Closing are subject to the fulfillment on or before the Initial Closing of each of the following conditions by the Company (unless waived by the Investor in writing):
(a) Representations and Warranties. The representations and warranties by the Company contained in Section 8 of this Agreement that are qualified by reference to “material”, “materially”, “material adverse effect” or “Material Adverse Change” shall be true and correct in all respects when made and on and as of the Initial Closing (with the same effect as though such representations and warranties had been made on and as of the date of such Initial Closing), and all other representations and warranties by the Company contained in Section 8 of this Agreement shall be true and correct in all material respects when made and on and as of the Initial Closing (with the same effect as though such representations and warranties had been made on and as of the date of such Initial Closing), except for such representations and warranties which are made as of a certain date, which shall be true and correct in all respects or in all material respects, as applicable, as of such date.
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(b) Performance. The Company shall have performed and complied in all material respects with all agreements, obligations and conditions contained in this Agreement and the Operating Agreement that are required to be performed or complied with by it on or before the Initial Closing.
(c) Compliance Certificate. An officer of the Company shall deliver to the Investor at the Initial Closing a certificate signed by him on behalf of the Company stating that the conditions specified in Sections 3(a), 3(b) and 3(d) hereof have been fulfilled and stating that on the Initial Closing Date, to the Company’s knowledge, there exists no event, circumstance, condition, fact, effect or other matter, or series of events, circumstances, conditions, facts, effects or matters, individually or in the aggregate, that has had or would be reasonably expected to have a Material Adverse Change.
(d) Consents and Waivers. The Company shall have obtained all consents or waivers necessary to execute and perform its obligations under this Agreement and the Operating Agreement and to carry out the transactions contemplated hereby and thereby. All corporate and other action, including any amendments to the Operating Agreement, and any governmental filings necessary to effectuate the terms of this Agreement, the Operating Agreement and other agreements and instruments executed and delivered by the Company in connection herewith shall have been made or taken.
4. Conditions to Company’s Obligations at Initial Closing. The obligations of the Company to the Investor under this Agreement to be performed at the Initial Closing are subject to the fulfillment on or before the Initial Closing of each of the following conditions by the Investor (unless waived by the Company in writing):
(a) Representations and Warranties of the Investor. The representations and warranties by the Investor contained in Section 7 of this Agreement that are qualified by reference to “material”, “materially”, “material adverse effect” or “Material Adverse Change” shall be true and correct in all respects when made and on and as of the Initial Closing (with the same effect as though such representations and warranties had been made on and as of the Initial Closing) and all other representations and warranties by the Investor shall be true and correct in all material respects when made and on and as of the Initial Closing (with the same effect as though such representations and warranties had been made on and as of the date of the Initial Closing), except for such representations and warranties which are made as of a certain date, which shall be true and correct in all respects or in all material respects, as applicable, as of such date.
(b) Compliance Certificate from the Investor. The Company shall have received a certificate of the Investor signed by an authorized officer of the Investor to the effect that the conditions in Sections 4(a) and 4(c) have been satisfied.
(c) Consents and Waivers. The Investor shall have obtained all consents or waivers necessary to execute and perform its obligations under this Agreement and the Operating Agreement and to carry out the transactions contemplated hereby and thereby. All corporate and other action, including any amendments to the Operating Agreement, and any governmental filings necessary to effectuate the terms of this Agreement, the Operating Agreement and other agreements and instruments executed and delivered by the Investor in connection herewith shall have been made or taken.
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(d) Purchase Price. The Investor shall have funded to the Company the Initial Purchase Price.
5. Conditions to the Investor’s Obligations at any Subsequent Closing. The obligations of the Investor under this Agreement to be performed at any Subsequent Closing are subject to the fulfillment on or before such Subsequent Closing of each of the following conditions by the Company (unless waived by the Investor in writing):
(a) Representations and Warranties of the Company. The representations and warranties by the Company contained in Section 8 of this Agreement that are qualified by reference to “material”, “materially”, “material adverse effect” or “Material Adverse Change” shall be true and correct in all respects as of such Subsequent Closing Date, as if made on and as of such Subsequent Closing Date, and all other representations and warranties by the Company contained in Section 8 of this Agreement shall be true and correct in all material respects as of such Subsequent Closing Date, as if made on such Subsequent Closing Date, except for such representations and warranties which are made as of a certain date, which shall be true and correct in all respects or in all material respects, as applicable, as of such date.
(b) Performance. The Company shall have performed and complied in all material respects with all agreements, obligations and conditions contained in this Agreement, and the Operating Agreement that are required to be performed or complied with by it on or before such Subsequent Closing.
(c) Compliance Certificate. The Investor shall have received a certificate of the Company signed by an authorized officer of the Company to the effect that the conditions in Sections 5(a), 5(b) and 5(d) have been satisfied.
(d) Consents and Waivers. The Company shall have obtained all consents or waivers necessary to execute and perform its obligations under this Agreement and the Operating Agreement and to carry out such Subsequent Closing. All corporate and other action, including any amendments to the bylaws of the Company, and any governmental filings necessary to effectuate the terms of this Agreement, the Operating Agreement and other agreements and instruments executed and delivered by the Company in connection herewith shall have been made or taken.
(e) Operating Agreement Conditions. All of the conditions applicable to such Subsequent Closing set forth in the Operating Agreement, including the conditions set forth in Section 3.6.5 therein, have been satisfied.
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6. Conditions to Company’s Obligations at any Subsequent Closing. The obligations of the Company to the Investor under this Agreement to be performed at any Subsequent Closing are subject to the fulfillment on or before such Subsequent Closing of each of the following conditions by the Investor (unless waived by the Company in writing):
(a) Representations and Warranties of the Investor. The representations and warranties by the Investor contained in Section 7 of this Agreement that are qualified by reference to “material”, “materially”, “material adverse effect” or “Material Adverse Change” shall be true and correct in all respects as of such Subsequent Closing Date, as if made on and as of such Subsequent Closing Date, and all other representations and warranties by the Investor shall be true and correct in all material respects as of such Subsequent Closing Date, as if made on such Subsequent Closing Date, except for such representations and warranties which are made as of a certain date, which shall be true and correct in all respects or in all material respects, as applicable, as of such date.
(b) Compliance Certificate from the Investor. The Company shall have received a certificate of the Investor signed by an authorized officer of the Investor to the effect that the conditions in Sections 6(a) and 6(c) have been satisfied.
(c) Consents and Waivers. The Investor shall have obtained all consents or waivers necessary to execute and perform its obligations under this Agreement and the Operating Agreement and to carry out such Subsequent Closing. All corporate and other action, including any amendments to the Operating Agreement, and any governmental filings necessary to effectuate the terms of this Agreement, the Operating Agreement and other agreements and instruments executed and delivered by the Investor in connection herewith shall have been made or taken.
(d) Purchase Price. The Investor shall have funded to the Company the applicable purchase price for such Subsequent Closing.
7. The Investor’s Representations. In connection with the Investor’s purchase of the Preferred Interests, the Investor makes the following representations and warranties on which the Company is entitled to rely.
(a) The Investor is a Person duly organized, validly existing and in good standing under the laws of the Republic of Ireland and has all requisite power and authority to carry on its business as now conducted, to own and use the properties owned and used by it and to enter into this Agreement and the Operating Agreement. All action (corporate or other) on the part of the Investor for the authorization of the execution and delivery of this Agreement and the Operating Agreement and the performance of all obligations of the Investor hereunder, has been taken as of the date hereof, and thereunder, shall be taken as of the date thereof, and each such agreement constitutes, or shall constitute, its valid and legally binding obligation, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights and the general equity principles.
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(b) The Investor has received, read and understands the Operating Agreement and this Agreement. For purposes of the preceding sentence, the Operating Agreement shall mean the Operating Agreement in the form attached herewith under Exhibit A, and for the Subsequent Closings the most recent version of such document that was made available to the Investor through the time immediately prior to such Subsequent Closing.
(c) No representations or warranties have been made to the Investor by the Company, or any agent of said persons, other than as set forth in the Operating Agreement and this Agreement.
(d) The Investor is acquiring the Preferred Interests solely for the Investor’s own account and not directly or indirectly for the account of any other person whatsoever for investment and not with a view to, or for sale in connection with, any distribution of the Preferred Interests. The Investor does not have any contract, undertaking or arrangement with any person to sell, transfer or grant a participation to any person with respect to the Preferred Interests.
(e) The Investor is an “accredited investor” within the meaning of SEC Rule 501 of Regulation D under the Securities Act, as presently in effect.
(f) No suit, action, claim, investigation or other proceeding is pending or, to the Investor’s knowledge, is threatened against the Investor or its Affiliates which questions the validity of the Operating Agreement or this Agreement or any action taken or to be taken pursuant to the Operating Agreement or this Agreement. For the purpose of this Agreement, “knowledge” means, with respect to the Investor, the actual knowledge of those individuals set forth on Schedule 7(f) hereto after due inquiry.
(g) All action on the part of the Investor, its officers, directors and members necessary for the authorization of the execution and delivery of this Agreement and the Operating Agreement and the performance of all obligations of the Investor hereunder and thereunder has been taken as of the date hereof. The Operating Agreement and this Agreement create valid and binding obligations of the Investor and are enforceable against the Investor in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
8. Company’s Representations. The Company makes the following representations and warranties on which the Investor is entitled to rely:
(a) The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to carry on its business as now conducted and in which it proposes to engage in and to own and use the properties owned and used by it. The Company has made available to the Investor a complete and correct copy of its certificate of formation and the Original Operating Agreement, each as amended to date (the “Company Organizational Documents”).
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(b) Capitalization and Voting Rights.
(i) Immediately prior to the Initial Closing, the Fully Diluted Company Interests consist of (i) 81.3% issued and outstanding Common Interests, all of which are held by Iridium and (ii) 18.7% issued and outstanding Preferred Interests, all of which are held by NAV CANADA US Subsidiary.
(ii) At the Initial Closing and after giving effect to the transactions contemplated herein occurring on or prior to the Initial Closing Date, the Fully Diluted Company Interests will consist of (i) 75.19% issued and outstanding Common Interests, all of which are held by Iridium and (ii) 24.81% issued and outstanding Preferred Interests, which are held by the Investor, NAV CANADA US Subsidiary, Enav and Naviair in the following percentages:
The Investor – 1.84%
NAV CANADA US Subsidiary – 17.29%
Enav – 3.84%
Naviair – 1.84%
(iii) The Company does not own, directly or indirectly, any equity, membership interest, partnership interest, joint venture interest, or other equity or voting interests in, or any interest convertible into, exercisable or exchangeable for any of the foregoing, any Person.
Except as set forth in clause (ii) above, at the Initial Closing or the last Subsequent Closing contemplated herein, as applicable, there are or will be no other Interests or securities (including interest appreciation, “phantom interest”, interest participation or similar rights) of, or in respect of, the Company of any class issued, reserved for issuance or outstanding. Except as set forth on Schedule 8(b) hereto, at the Initial Closing or the last Subsequent Closing, as applicable, there are or will be no outstanding options, warrants, rights (including exchange, conversion, subscription, purchase or preemptive rights), agreements or obligations for the purchase or acquisition from the Company of any Interests or that could require the Company to issue, sell or otherwise cause to become outstanding, purchase or dispose of any Interests (other than pursuant to this Agreement, the Subscription Agreements between the Company and each of NAV CANADA US Subsidiary, Enav and Naviair, and the Operating Agreement). At the Initial Closing or the last Subsequent Closing, as applicable, neither the Company nor, to the Company’s knowledge, any of its members or directors, is or will be a party or subject to any agreement, commitment or understanding (including any voting trusts or proxies), which affects or relates to the voting or giving of written consents with respect to any Interest or security of the Company or by a Director of the Company (other than the Operating Agreement).
(c) The execution, delivery and performance of the Operating Agreement and this Agreement, the consummation of all of the transactions contemplated hereby and thereby do not and will not conflict with or result in any violation of or default under any provision of any other agreement or instrument to which the Company is a party or any license, permit, franchise, judgment, order, writ or decree, or any law, statute, rule or regulation, applicable to the Company.
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(d) Except as set forth on Schedule 8(d)(i) hereto, no suit, action, claim, investigation or other proceeding is pending or, to the Company’s knowledge is threatened against the Company or its Affiliates which either (x) questions the validity of the Operating Agreement or this Agreement or any action taken or to be taken pursuant to the Operating Agreement or this Agreement; or (y) could reasonably be expected to have a material adverse effect on the Company, its business, operations, assets, properties, conditions (financial or otherwise) or investments. For the purpose of this Agreement, “knowledge” means, with respect to the Company, the actual knowledge of those individuals set forth on Schedule 8(d)(ii) hereto after due inquiry.
(e) The Preferred Interests being purchased from the Company by the Investor hereunder, when sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly authorized, issued, fully paid and nonassessable, will conform to the description of Preferred Interests contained in the Company’s Operating Agreement, will have been issued, sold and delivered in compliance with all applicable federal and state laws concerning the issuance and sale of securities and will be free and clear of (i) restrictions on transfer, other than restrictions on transfer under this Agreement and the Operating Agreement, and under applicable regional, supranational, federal, state, provincial, foreign or local law, statute, rule, regulation, order, ordinance, judgment, code or decree (each a “Law” and, collectively, “Laws”), and (ii) Taxes, liens, warrants, purchase rights, contracts, commitments, equities, demands and claims whatsoever. For the purpose of this Agreement, “Tax” means any federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Section 59A of the Internal Revenue Code of 1986, as amended), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, production personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated or other tax of any kind whatsoever, including any interest, penalty or addition thereto and any interest, penalties and additions in respect of such interest, penalties and additions, whether disputed or not.
(f) All action on the part of the Company, its officers, directors and members necessary for the authorization of the execution and delivery of this Agreement and the Operating Agreement and the performance of all obligations of the Company hereunder and thereunder (including the authorization and issuance of the Preferred Interests being sold hereunder) has been taken as of the date hereof. The Operating Agreement and this Agreement create valid and binding obligations of the Company and are enforceable against the Company in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
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(g) The Company has delivered to the Investor a pro forma balance sheet of the Company as of October 31, 2013 in the form attached hereto as Exhibit C (the “Balance Sheet”). The Balance Sheet has been prepared from and is in accordance with the Company’s books and records and fairly presents in all material respects the assets and liabilities of the Company as of the date thereof. Except as set forth in the Balance Sheet or as set forth on Schedule 8(g), as of the Initial Closing Date, the Company has no material liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to October 31, 2013 and (ii) liabilities that, individually and in the aggregate, are not material to the financial condition or operating results of the Company.
(h) Assuming the representations and warranties of the Investor in this Agreement are true and accurate, the offer, sale and issuance of the Preferred Interests as contemplated by this Agreement are exempt from the registration requirements of the Securities Act, and the qualification or registration requirements of applicable blue sky laws. Neither the Company nor any authorized agent acting on its behalf has offered or will offer or sell any securities, or has taken or will take any other action (including any offering of any securities of the Company under circumstances that would require under the Securities Act the integration of such offering with the offering and sale of the Preferred Interests being acquired hereunder), that would cause the loss of such exemptions.
(i) The Company is not in violation of any provision of the Company Organizational Documents. No third party (including Governmental Authority) notices, consents or waivers are required to be obtained or made in connection with (i) the execution, delivery and performance of this Agreement or the Operating Agreement which has not been obtained or (ii) the consummation of the transactions contemplated by this Agreement or the Operating Agreement.
(j) The Company is in compliance in all material respects with all applicable Laws. The Company has not received any notice of, and to the Company’s knowledge, no investigation or review is in process or threatened by any Governmental Authority with respect to, any violation or alleged violation of any applicable Law. For the purpose of this Agreement, “Governmental Authority” means any supranational, national, state, provincial, local, foreign or other political subdivision thereof or entity, department, agency or instrumentality exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to the government.
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(k) The Company is in compliance in all material respects with all Company Contracts. Each material Company Contract is a legal, valid and binding agreement, assuming the due authorization, execution and delivery thereof by the third-party counter-parties thereto, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting enforcement of creditors’ rights and to general equity principles, and each is in full force and effect on identical terms following the consummation of the transactions contemplated hereby. To the Company’s knowledge, no party to any material Company Contract other than the Company is in breach or default, and no event has occurred which with notice or lapse of time or both would constitute a breach or default or permit termination, modification or acceleration under any material Company Contract. The Company has performed all of its obligations required to be performed by it to date under each material Company Contract and the Company is not in breach or default, and no event has occurred which with notice or lapse of time or both would constitute a breach or default or permit termination, modification or acceleration under any material Company Contract. Other than those set forth on Schedule 8(k) hereto or as approved by the Company’s Board of Directors after the Initial Closing Date, none of the material Company Contracts was entered into outside the ordinary course of business. For the purpose of this Agreement, “Company Contract” means any agreement, contract, lease, permit, consent, settlement, option, license, authorization, instrument or other arrangement (including any employee incentive plan or grant or award thereunder) (each, a “Contract”) which the Company is a party to or bound by or to which any of its assets is subject.
(l) Other than the Data Service Agreement, the Hosting Agreement, the Administrative Services Agreement, the Airtime Credits Agreement, the NAV CANADA Data Services Agreement, the Additional Investors Data Services Agreements and the HPOC Agreement, each as amended to date, (i) no Affiliate, shareholder, employee, officer or director of the Company or member of his or her immediate family (such Persons, collectively, “Related Parties”) is indebted to the Company, nor is the Company indebted (or committed to make loans or extend or guarantee credit) to any Related Party, in both cases, in an aggregate amount, together with any and all interest due thereunder, per any such Person greater than $10,000, except for accrued vacation pay, expense reimbursement and other accrued benefits under applicable employee benefit plans and policies of the Company in the ordinary course of business; (ii) to the Company’s knowledge, none of the Related Parties (other than any Affiliates) has any direct or indirect ownership interest in any firm or corporation with which the Company is affiliated or with which the Company has a business relationship, or any firm or corporation that competes with the Company, except that employees, members, officers or directors of the Company and members of their immediate families may own stock in publicly traded companies; and (iii) other than Contracts related to employment with or services to the Company set forth on Schedule 8(l) hereto or as approved by the Company’s Board of Directors after the Initial Closing Date, no Related Party is directly or indirectly interested in any material Company Contract or transaction or series of transactions with the Company in which the aggregate amount involved exceeds $10,000 (such Contracts and transactions, collectively, “Related Party Transactions”). All Related Party Transactions have been recorded in the books and records of the Company in accordance with applicable Law and applicable accounting standards and true, correct and complete copies of all agreements and documents relating to such Related Party Transactions and the Data Service Agreement, the Hosting Agreement and the Administrative Services Agreement have been provided to the Investor. For the purpose of this Agreement, (i) the “Data Service Agreement” means that certain Data Transmission Services Agreement No. IS-12-034 between the Company and Iridium, dated as of November 19, 2012; (ii) the “Hosting Agreement” means that certain Hosting Cost Reimbursement Agreement No. IS-12-033 between the Company and Iridium, dated as of November 19, 2012; (iii) the “Administrative Services Agreement” means that certain Amended and Restated Administrative Services Agreement between the Company and Iridium, dated as of November 19, 2012, (iv) the “Airtime Credits Agreement” means that certain Airtime Credits Agreement between the Company and Iridium dated as of October 17, 2012, (v) the “NAV CANADA Data Services Agreement” means that certain Services Agreement No. AIR-13-003 between the Company and NAV CANADA dated as of April 24, 2013, (vi) the “Additional Investors Data Services Agreements” means Services Agreements between the Company and each of Enav, IAA and Naviair on substantially the same terms as the NAV CANADA Data Services Agreement executed on or before the Second A&R Effective Date, and (vii) the “HPOC Agreement” means that certain Services Agreement No. AIR-13-007 between the Company and Iridium dated as of October 28, 2013 and Statement of Work No. 1 thereto for the Hosted Payload Operations Center.
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(m) The Company has delivered to the Investor a true, complete and correct copy of the Budget. The Budget has been prepared in good faith and based on the reasonable judgment of the Company. To the knowledge of the Company, no fact, occurrence or effect has occurred that would result in any material change to the Budget.
(n) The Company is and always has been a limited liability company treated as a disregarded entity for tax purposes. The Company has timely filed all tax returns (federal, state and local) required to be filed by it, and all such returns are true, correct and complete. All taxes, if any, shown to be due and payable on such returns, any assessments imposed, and all other taxes due and payable by the Company with regard to periods through the Initial Closing, if any, whether or not shown on any return, have been paid or have been adequately provided for and will be paid prior to the time they become delinquent. There are no material liens on any assets of the Company with respect to taxes. The Company has not been advised (a) that any of its returns, federal, state or other, have been or are being audited as of the date hereof, or (b) of any deficiency in assessment or proposed judgment to its federal, state or other taxes. There are no tax liabilities to be imposed upon the Company’s properties or assets as of the date of this Agreement that are not adequately provided for. The Company has no outstanding or pending agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or reassessment of, Taxes due from the Company. The Company has not executed or entered into a closing agreement under Section 7121 of the Internal Revenue Code or any similar provision of state, local or foreign Tax law, nor is the Company subject to any private letter ruling of the IRS or comparable ruling of any other taxing authority. The Company is not a party to any contract relating to the sharing, allocation or indemnification of taxes and does not have any liability for taxes of any person under Treasury Regulations or any similar state, local of foreign tax law, as a transferee or successor or otherwise. The Company will not be required to include in a taxable period ending after the Initial Closing taxable income attributable to income that accrued in a taxable period prior to the Initial Closing but was not recognized for tax purposes in such prior taxable period.
(o) Except as set forth in Schedule 8(o) hereto, the Company does not have any liability, obligation or arrangement to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement or the Operating Agreement.
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(p) The Company satisfies all requirements set forth in the Iridium Credit Agreement to be an Excluded Company (i.e., it is not required to become an Obligor under the Iridium Credit Agreement).
9. Indemnification.
(a) The Company shall indemnify, defend and hold harmless the Investor and its Affiliates and their respective officers, directors, agents, employees, partners, members, controlling persons and Affiliates (each, an “Investor Indemnified Party” and collectively, the “Investor Indemnified Parties”) to the fullest extent permitted by law from and against any and all losses, Claims, or written threats thereof (including, without limitation, any Claim by a third party), damages, diminution in value, expenses (including reasonable fees, disbursements and other charges of counsel) or other liabilities (collectively, “Losses”) resulting from or arising out of (a) any breach of any representation or warranty of the Company in this Agreement and (b) any breach of any covenant or agreement of the Company in this Agreement or the Operating Agreement. Notwithstanding the foregoing, the Losses shall not include costs, fees and expenses incurred by any Investor Indemnified Party connection with: (i) any violations of law or governmental regulations by such Investor Indemnified Party, (ii) any acts of willful misconduct or gross negligence by such Investor Indemnified Party, (iii) any material breach of this Agreement by such Investor Indemnified Party, or (iv) any actions against such Investor Indemnified Party by creditors of such Investor Indemnified Party or shareholders or creditors of such Investor Indemnified Party’s parent companies. The amount of any payment to any Investor Indemnified Party herewith in respect of any Loss shall be of sufficient amount to make such Indemnified Party whole for any diminution in value of the Interests held by the Investor or its Affiliates caused by such Loss.
(b) The Investor shall indemnify, defend and hold harmless the Company and its Affiliates and their respective officers, directors, agents, employees, partners, members, controlling persons and Affiliates (each, a “Company Indemnified Party” and collectively, the “Company Indemnified Parties”) to the fullest extent permitted by law from and against any and all Losses resulting from or arising out of (a) any breach of any representation or warranty of the Investor in this Agreement and (b) any breach of any covenant or agreement of the Investor in this Agreement or the Operating Agreement. Notwithstanding the foregoing, the Losses shall not include costs, fees and expenses incurred by any Company Indemnified Party connection with: (i) any violations of law or governmental regulations by such Company Indemnified Party, (ii) any acts of willful misconduct or gross negligence by such Company Indemnified Party, (iii) any material breach of this Agreement by such Company Indemnified Party, or (iv) any actions against such Investor Indemnified Party by creditors of such Company Indemnified Party or shareholders or creditors of such Company Indemnified Party’s parent companies. The amount of any payment to any Company Indemnified Party herewith in respect of any Loss shall be of sufficient amount to make such Company Indemnified Party whole for any diminution in value of the Interests held by the Members of the Company or their respective Affiliates caused by such Loss.
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(c) For the purpose of this Agreement, “Claim” means any action, suit, claim, hearing, inquiry, audit, complaint, demand, litigation, arbitration or legal, civil, criminal, administrative or arbitral action, proceeding or investigation.
(d) Promptly after an Investor Indemnified Party or Company Indemnified Party (each in such capacity, an “Indemnified Party”) receives notice or becomes aware pertaining to any Claim for which the Company or the Investor (each in such capacity, an “Indemnifying Party”) may be responsible under this Section 9, the Indemnified Party shall give written notice to the Indemnifying Party of such claim in reasonable detail; provided that the failure of the Indemnified Party to give such notice shall not affect such Indemnified Party’s rights under this Section 9 except to the extent the Indemnifying Party is actually and materially prejudiced by such failure to give such notice. The Indemnifying Party shall have the right to assume and conduct the defense of any Claim filed or instituted by any third party against the Indemnified Party (each, a “Third Party Claim”); provided that such Third Party Claim does not (i) relate to or arise in connection with any criminal proceeding or allegation or (ii) seeks any remedy other than payment of monetary damages; provided further that if the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to participate in the defense thereof at its own cost.
(e) No Indemnified Party shall be entitled to recover any Losses pursuant to this Section 9 in excess of the sum of the Investor's funded portion of the First Additional Investors Tranche Financing Amount and the Second Additional Investors Tranche Financing Amount. Except for any pending Claims that remain unresolved, no Indemnified Party shall be entitled to any indemnification under this Section 9 after the six-month anniversary of the earlier of (i) the closing of the Second Additional Investors Tranche Financing, and (ii) the Second Additional Investors Tranche Financing Final Tranche Date (as may be extended by mutual agreement of the Investor and the Company).
10. Assignment. The Investor shall at any time prior to the Initial Closing be entitled to transfer and assign any and all rights and obligations under this Agreement to a fully owned subsidiary, provided that the Investor shall remain liable for the fulfillment by such subsidiary of all obligations the Investor would otherwise have under this Agreement; provided, further that such transferee or assignee shall be bound by the terms of this Agreement as if it were the Investor party hereto, perform all obligations of the Investor hereunder and make the representations provided under Section 7 hereto.
11. Survival of Agreements, Representations and Warranties. All agreements, representations and warranties contained herein or made in writing by or on behalf of the Investor and the Company in connection with the transactions contemplated by this Agreement shall survive the execution of this Agreement and the Operating Agreement, any investigation at any time made by the Investor, the Company or on behalf of any of them and the sale and purchase of the Interests and payment therefor.
14. |
12. Legends. The Investor consents to the placement of the legend contained on the signature page of the Operating Agreement and any other legend required or advisable, as determined by Company Counsel, by applicable law.
13. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original but all of which together shall constitute one (1) and the same instrument.
14. Amendments. Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated orally, but only with the written consent of the Investor and the Company.
15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
16. Jury Trial Waiver. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER TRANSACTION DOCUMENTS. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16.
17. Venue. Subject to Section 18, each of the parties hereto (i) consents to submit itself to the personal jurisdiction of (A) the United States Courts located in the State of Delaware in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement to the extent such court would have subject matter jurisdiction with respect to such dispute and (B) the courts located in the State of Delaware; (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction or venue by motion or other request for leave from any such court; (iii) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than such courts; (iv) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to a party at its address set forth in Section 13.2 of the Operating Agreement or at such other address of which a party shall have been notified pursuant thereto; and (v) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law.
15. |
18. Dispute Resolution.
(a) The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place.
(b) Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of executives described above (“First Meeting”). Such closure shall not preclude continuing or later negotiations, if desired.
(c) All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
(d) At no time prior to the First Meeting shall either side initiate any litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of Paragraph 18(a) above.
(e) All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in Paragraphs 18(a) and (b) above are pending and for 15 calendar days thereafter. The parties will take such action, if any, required to effectuate such tolling.
(f) If the parties do not reach a resolution to the dispute within a period of thirty (30) days from the date of the First Meeting, then either party may pursue its remedies in accordance with applicable law.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
16. |
In Witness Whereof, the parties hereto have executed This Subscription Agreement as of the date first above written.
Aireon LLC | ||
By: | /s/ Donald L. Thoma | |
Name: Donald L. Thoma | ||
Title: Chief Executive Officer |
Irish Aviation Authority Limited | ||
By: | /s/ Eamonn Brennan | |
Name: Eamonn Brennan | ||
Title: CEO |
Signature Page to Subscription Agreement
Exhibit A
Second Amended and Restated Limited Liability Company Agreement
Exhibit B
Tranche | Capital Contribution | Preferred Interests | ||||||
First Tranche Capital Contribution | $ | 12,244,898 | 1.84 | % | ||||
Second Tranche Capital Contribution | $ | 6,122,449 | 0.75 | % | ||||
Third Tranche Capital Contribution | $ | 8,081,633 | 1.55 | % | ||||
Fourth Tranche Capital Contribution | $ | 2,938,776 | 0.69 | % |
Exhibit B-1
For ease of reference, the following table sets forth the applicable post-redemption target percentages for each tranche as defined in the Operating Agreement (in the event of any conflict between the Operating Agreement and this table, the Operating Agreement shall control):
First Additional Investors Tranche Post-Redemption IAA Target Interest | 2.5 | % | ||
Second Additional Investors Tranche Post-Redemption IAA Target Interest | 1.25 | % | ||
Third Additional Investors Tranche Post-Redemption IAA Target Interest | 1.65 | % | ||
Fourth Additional Investors Tranche Post-Redemption IAA Target Interest | 0.6 | % | ||
Total | 6.0 | % |
Exhibit C
Pro Forma Balance Sheet as of October 31, 2013
Schedule 7(f) - The Investor’s Knowledge
Schedule 8(b) - Capitalization and Voting Rights
Schedule 8(d)(i) - Litigation
Schedule 8(d)(ii) - The Company’s Knowledge
Schedule 8(g) - Liabilities
Schedule 8(k) - Material Company Contracts
Schedule 8(l) - Related Party Transactions
Schedule 8(o) - Brokers
Execution Version
AIREON LLC
AMENDED AND RESTATED SUBSCRIPTION AGREEMENT
FOR INTERESTS
(Preferred Interests)
AIREON LLC
AMENDED AND RESTATED SUBSCRIPTION AGREEMENT
FOR
INTERESTS
(Preferred Interests)
THE OFFERING OF SECURITIES DESCRIBED HEREIN HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THIS OFFERING IS MADE PURSUANT TO RULE 506 OF REGULATION D UNDER SECTION 4(2) OF SAID ACT, WHICH EXEMPTS FROM SUCH REGISTRATION TRANSACTIONS NOT INVOLVING A PUBLIC OFFERING. FOR THIS REASON, THESE SECURITIES WILL BE SOLD ONLY TO INVESTORS WHO MEET CERTAIN MINIMUM SUITABILITY QUALIFICATIONS DESCRIBED HEREIN.
A SUBSCRIBER SHOULD BE PREPARED TO BEAR THE ECONOMIC RISK OF AN INVESTMENT IN THE COMPANY FOR AN INDEFINITE PERIOD OF TIME BECAUSE THE INTERESTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR THE LAWS OF ANY OTHER JURISDICTION, AND, THEREFORE, CANNOT BE SOLD UNLESS THEY ARE SUBSEQUENTLY REGISTERED OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THERE IS NO OBLIGATION OF THE ISSUER TO REGISTER THE INTERESTS UNDER THE SECURITIES ACT OR THE LAWS OF ANY OTHER JURISDICTION. TRANSFER OF THE INTERESTS IS ALSO RESTRICTED BY THE TERMS OF THE SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT RELATING THERETO.
SUBSCRIPTION AGREEMENT
This Amended and Restated Subscription Agreement (this “Agreement”), dated as of December 20, 2013, is entered into by and among AIREON LLC, a Delaware limited liability company (the “Company”), and NAV CANADA Satellite, Inc., a Delaware corporation and a wholly owned subsidiary of NAV CANADA (the “Investor”), and amends and restates the Subscription Agreement between the Investor and the Company dated as of November 19, 2012 (the “Original Subscription Agreement”), in connection with the Investor’s purchase of Preferred Interests in the Company (“Interests”) and entry into the Company’s Second Amended and Restated Limited Liability Company Agreement, in substantially the form set forth as Exhibit A attached hereto (the “Operating Agreement”), which shall be entered into on or before February 14, 2014 and shall amend and restate that certain Amended and Restated Limited Liability Company Agreement, dated as of November 19, 2012, as amended by Amendment No. 1 dated as of June 27, 2013 (as so amended, the “Original Operating Agreement”), by and among Investor, NAV CANADA, Iridium Satellite LLC (“Iridium”), and the Company. Capitalized terms used but not defined herein shall have the meanings given them in the Operating Agreement.
The Investor hereby subscribes for Interests in the Company, and the Company and the Investor hereby agree as follows:
1. Subscription.
(a) First NAV CANADA Tranche Financing.
The First NAV CANADA Tranche Financing was effected pursuant to the terms of the Original Subscription Agreement on November 19, 2012.
(b) Second NAV CANADA Tranche Financing.
The Second NAV CANADA Tranche Financing was effected pursuant to the terms of the Original Subscription Agreement on June 27, 2013. The Second NAV CANADA Tranche Financing Interest is hereby amended (effective as of and conditioned on the occurrence of the Second A&R Effective Date) to the amount shown in Exhibit B.
(c) Third NAV CANADA Tranche Financing.
Subject to the terms and conditions hereof and the terms and conditions of the Operating Agreement, including Section 3.6.3.2 thereof, upon the satisfaction (or waiver by the Investor) of all of the conditions set forth in Section 3.6.3.2 of the Operating Agreement, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby subscribes for and agrees to purchase the amount of Preferred Interests convertible into the amount of the Fully Diluted Company Interests set forth opposite the heading “Third Tranche Capital Contribution” set forth on Exhibit B attached hereto for the aggregate purchase price that corresponds to such Third Tranche Capital Contribution amount set forth on Exhibit B attached hereto.
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(d) Fourth NAV CANADA Tranche Financing.
Subject to the terms and conditions hereof and the terms and conditions of the Operating Agreement, including Section 3.6.3.3 thereof, upon the satisfaction (or waiver by the Investor) of all of the conditions set forth in Section 3.6.3.3 of the Operating Agreement, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby subscribes for and agrees to purchase the amount of Preferred Interests convertible into the amount of the Fully Diluted Company Interests set forth opposite the heading “Fourth Tranche Capital Contribution” set forth on Exhibit B attached hereto for the aggregate purchase price that corresponds to such Fourth Tranche Capital Contribution amount set forth on Exhibit B attached hereto.
(e) Fifth NAV CANADA Tranche Financing.
Subject to the terms and conditions hereof and the terms and conditions of the Operating Agreement, including Section 3.6.3.4 thereof, upon the satisfaction (or waiver by the Investor) of all of the conditions set forth in Section 3.6.3.4 of the Operating Agreement, the Company hereby agrees to issue and sell to the Investor, and the Investor hereby subscribes for and agrees to purchase the amount of Preferred Interests convertible into the amount of the Fully Diluted Company Interests set forth opposite the heading “Fifth Tranche Capital Contribution” set forth on Exhibit B attached hereto for the aggregate purchase price that corresponds to such Fifth Tranche Capital Contribution amount set forth on Exhibit B attached hereto.
(f) Closing of Purchase and Sale.
The purchase and sale of the Third NAV CANADA Financing Interest, Fourth NAV CANADA Financing Interest, and the Fifth NAV CANADA Financing Interest (each such purchase and sale, a “Subsequent Closing”, and the date of any such Subsequent Closing, a “Subsequent Closing Date”) shall take place at the offices of Paul, Weiss, Rifkind, Wharton & Garrison LLP, 2001 K Street, NW, Washington, DC 20006-1047, in accordance with the terms and conditions herein and the Operating Agreement. At any Subsequent Closing, (1) the Company shall deliver to the Investor the various certificates, instruments and documents referred to in Section 5 below, (2) the Investor shall deliver to the Company the various certificates, instruments and documents referred to in Section 6 below, (3) the Company shall issue to the Investor the applicable Preferred Interests being purchased by the Investor in such Subsequent Closing by appropriate notation in the Member Register, and (4) the Investor shall deliver to the Company, by wire transfer of immediately available funds to an account identified by the Company and communicated in writing to the Investor at least 15 (fifteen) days prior to the applicable Subsequent Closing, the applicable purchase price for such Subsequent Closing. Notwithstanding the foregoing, if the purchase and sale of the Third NAV CANADA Financing Interest takes place at more than one closing, then the Company and the Investor shall only be required to deliver the deliverables set forth in foregoing clauses (1) and (2) at the first such closing for such NAV CANADA Financing.
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2. Operating Agreement. Concurrent with the closing of the First Additional Investors Tranche Financing (the “First Additional Investors Closing”), (i) the Company shall include a schedule to the Operating Agreement which reflects the Preferred Interests held at such First Additional Investors Closing by the Investor, and (ii) the Investor shall execute a counterparty to the Operating Agreement in accordance with the terms and conditions thereof. The Parties agree and acknowledge that the Operating Agreement that will be executed at First Additional Investors Closing by the Investor and the other parties shall have the form set forth in Exhibit A, provided that any change, amendment and/or modification to the text of the Operating Agreement attached herewith under Exhibit A, occurring, due and/or necessary for whatever reason prior to First Additional Investors Closing, other than the filling in of dates, changes to entity names to reflect assignment of subscription rights to subsidiaries and similar clerical matters, shall be immediately communicated to the Investor and shall be approved in writing by the Investor, which approval shall not unreasonably be withheld, denied or delayed.
3. [Reserved]
4. [Reserved]
5. Conditions to the Investor’s Obligations at any Subsequent Closing. The obligations of the Investor under this Agreement to be performed at any Subsequent Closing are subject to the fulfillment on or before such Subsequent Closing of each of the following conditions by the Company (unless waived by the Investor in writing):
(a) Representations and Warranties of the Company. The representations and warranties by the Company contained in Section 8 of this Agreement that are qualified by reference to “material”, “materially”, “material adverse effect” or “Material Adverse Change” shall be true and correct in all respects as of such Subsequent Closing Date, as if made on and as of such Subsequent Closing Date, and all other representations and warranties by the Company contained in Section 8 of this Agreement shall be true and correct in all material respects as of such Subsequent Closing Date, as if made on such Subsequent Closing Date, except for such representations and warranties which are made as of a certain date, which shall be true and correct in all respects or in all material respects, as applicable, as of such date.
(b) Performance. The Company shall have performed and complied in all material respects with all agreements, obligations and conditions contained in this Agreement, and the Operating Agreement that are required to be performed or complied with by it on or before such Subsequent Closing.
(c) Compliance Certificate. The Investor shall have received a certificate of the Company signed by an authorized officer of the Company to the effect that the conditions in Sections 5(a), 5(b) and 5(d) have been satisfied.
(d) Consents and Waivers. The Company shall have obtained all consents or waivers necessary to execute and perform its obligations under this Agreement and the Operating Agreement and to carry out such Subsequent Closing. All corporate and other action, including any amendments to the bylaws of the Company, and any governmental filings necessary to effectuate the terms of this Agreement, the Operating Agreement and other agreements and instruments executed and delivered by the Company in connection herewith shall have been made or taken.
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(e) Operating Agreement Conditions. All of the conditions applicable to such Subsequent Closing set forth in the Operating Agreement, including the conditions set forth in Section 3.6.3 therein, have been satisfied.
6. Conditions to Company’s Obligations at any Subsequent Closing. The obligations of the Company to the Investor under this Agreement to be performed at any Subsequent Closing are subject to the fulfillment on or before such Subsequent Closing of each of the following conditions by the Investor (unless waived by the Company in writing):
(a) Representations and Warranties of the Investor. The representations and warranties by the Investor contained in Section 7 of this Agreement that are qualified by reference to “material”, “materially”, “material adverse effect” or “Material Adverse Change” shall be true and correct in all respects as of such Subsequent Closing Date, as if made on and as of such Subsequent Closing Date, and all other representations and warranties by the Investor shall be true and correct in all material respects as of such Subsequent Closing Date, as if made on such Subsequent Closing Date, except for such representations and warranties which are made as of a certain date, which shall be true and correct in all respects or in all material respects, as applicable, as of such date.
(b) Compliance Certificate from the Investor. The Company shall have received a certificate of the Investor signed by an authorized officer of the Investor to the effect that the conditions in Sections 6(a) and 6(c) have been satisfied.
(c) Consents and Waivers. The Investor shall have obtained all consents or waivers necessary to execute and perform its obligations under this Agreement and the Operating Agreement and to carry out such Subsequent Closing. All corporate and other action, including any amendments to the Operating Agreement, and any governmental filings necessary to effectuate the terms of this Agreement, the Operating Agreement and other agreements and instruments executed and delivered by the Investor in connection herewith shall have been made or taken.
(d) Purchase Price. The Investor shall have funded to the Company the applicable purchase price for such Subsequent Closing.
7. The Investor’s Representations. In connection with the Investor’s purchase of the Preferred Interests, the Investor makes the following representations and warranties on which the Company is entitled to rely.
(a) The Investor is a Person duly organized, validly existing and in good standing under the laws of Delaware and has all requisite power and authority to carry on its business as now conducted, to own and use the properties owned and used by it and to enter into this Agreement and the Operating Agreement. All action (corporate or other) on the part of the Investor for the authorization of the execution and delivery of this Agreement and the Operating Agreement and the performance of all obligations of the Investor hereunder, has been taken as of the date hereof, and thereunder, shall be taken as of the date thereof, and each such agreement constitutes, or shall constitute, its valid and legally binding obligation, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights and the general equity principles. The Investor is a wholly owned subsidiary of NAV CANADA.
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(b) The Investor has received, read and understands the Operating Agreement and this Agreement. For purposes of the preceding sentence, the Operating Agreement shall mean the Operating Agreement in the form attached herewith under Exhibit A, and for the Subsequent Closings the most recent version of such document that was made available to the Investor through the time immediately prior to such Subsequent Closing.
(c) No representations or warranties have been made to the Investor by the Company, or any agent of said persons, other than as set forth in the Operating Agreement and this Agreement.
(d) The Investor is acquiring the Preferred Interests solely for the Investor’s own account and not directly or indirectly for the account of any other person whatsoever for investment and not with a view to, or for sale in connection with, any distribution of the Preferred Interests. The Investor does not have any contract, undertaking or arrangement with any person to sell, transfer or grant a participation to any person with respect to the Preferred Interests.
(e) The Investor is an “accredited investor” within the meaning of SEC Rule 501 of Regulation D under the Securities Act, as presently in effect.
(f) No suit, action, claim, investigation or other proceeding is pending or, to the Investor’s knowledge, is threatened against the Investor or its Affiliates which questions the validity of the Operating Agreement or this Agreement or any action taken or to be taken pursuant to the Operating Agreement or this Agreement. For the purpose of this Agreement, “knowledge” means, with respect to the Investor, the actual knowledge of those individuals set forth on Schedule 7(f) hereto after due inquiry.
(g) All action on the part of the Investor, its officers, directors and members necessary for the authorization of the execution and delivery of this Agreement and the Operating Agreement and the performance of all obligations of the Investor hereunder and thereunder has been taken as of the date hereof. The Operating Agreement and this Agreement create valid and binding obligations of the Investor and are enforceable against the Investor in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
8. Company’s Representations. The Company makes the following representations and warranties on which the Investor is entitled to rely:
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(a) The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to carry on its business as now conducted and in which it proposes to engage in and to own and use the properties owned and used by it. The Company has made available to the Investor a complete and correct copy of its certificate of formation and the Original Operating Agreement, each as amended to date (the “Company Organizational Documents”).
(b) Capitalization and Voting Rights.
(i) Immediately prior to the First Additional Investors Closing, the Fully Diluted Company Interests consist of (i) 81.3% issued and outstanding Common Interests, all of which are held by Iridium and (ii) 18.7% issued and outstanding Preferred Interests, all of which are held by NAV CANADA US Subsidiary.
(ii) At the First Additional Investors Closing and after giving effect to the transactions contemplated herein occurring on or prior to the date of the First Additional Investors Closing, the Fully Diluted Company Interests will consist of (i) 75.19% issued and outstanding Common Interests, all of which are held by Iridium and (ii) 24.81% issued and outstanding Preferred Interests, which are held by the Investor, Enav US Subsidiary, IAA and Naviair in the following percentages:
The Investor – 17.29%
Enav US Subsidiary – 3.84%
IAA – 1.84%
Naviair – 1.84%
(iii) Unless otherwise approved in writing by the Investor pursuant to the terms of the Operating Agreement, the Preferred Interests held by the Investor after the closing of the Fifth NAV CANADA Tranche Financing, the completion of the Fourth Additional Investors Financing and the completion of the Mandatory Iridium Redemption (and after giving effect thereto) shall represent 51% of the Fully Diluted Company Interests as of the date of the completion of the Mandatory Iridium Redemption (after giving effect thereto).
(iv) The Company does not own, directly or indirectly, any equity, membership interest, partnership interest, joint venture interest, or other equity or voting interests in, or any interest convertible into, exercisable or exchangeable for any of the foregoing, any Person.
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Except as set forth in clause (ii) above, at the First Additional Investors Closing or the last Subsequent Closing contemplated herein, as applicable, there are or will be no other Interests or securities (including interest appreciation, “phantom interest”, interest participation or similar rights) of, or in respect of, the Company of any class issued, reserved for issuance or outstanding. Except as set forth on Schedule 8(b) hereto, at the First Additional Investors Closing or the last Subsequent Closing, as applicable, there are or will be no outstanding options, warrants, rights (including exchange, conversion, subscription, purchase or preemptive rights), agreements or obligations for the purchase or acquisition from the Company of any Interests or that could require the Company to issue, sell or otherwise cause to become outstanding, purchase or dispose of any Interests (other than pursuant to this Agreement, the Subscription Agreements between the Company and each of Enav US Subsidiary, IAA and Naviair, and the Operating Agreement). At the First Additional Investors Closing or the last Subsequent Closing, as applicable, neither the Company nor, to the Company’s knowledge, any of its members or directors, is or will be a party or subject to any agreement, commitment or understanding (including any voting trusts or proxies), which affects or relates to the voting or giving of written consents with respect to any Interest or security of the Company or by a Director of the Company (other than the Operating Agreement).
(c) The execution, delivery and performance of the Operating Agreement and this Agreement, the consummation of all of the transactions contemplated hereby and thereby do not and will not conflict with or result in any violation of or default under any provision of any other agreement or instrument to which the Company is a party or any license, permit, franchise, judgment, order, writ or decree, or any law, statute, rule or regulation, applicable to the Company.
(d) Except as set forth on Schedule 8(d)(i) hereto, no suit, action, claim, investigation or other proceeding is pending or, to the Company’s knowledge is threatened against the Company or its Affiliates which either (x) questions the validity of the Operating Agreement or this Agreement or any action taken or to be taken pursuant to the Operating Agreement or this Agreement; or (y) could reasonably be expected to have a material adverse effect on the Company, its business, operations, assets, properties, conditions (financial or otherwise) or investments. For the purpose of this Agreement, “knowledge” means, with respect to the Company, the actual knowledge of those individuals set forth on Schedule 8(d)(ii) hereto after due inquiry.
(e) The Preferred Interests being purchased from the Company by the Investor hereunder, when sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly authorized, issued, fully paid and nonassessable, will conform to the description of Preferred Interests contained in the Company’s Operating Agreement, will have been issued, sold and delivered in compliance with all applicable federal and state laws concerning the issuance and sale of securities and will be free and clear of (i) restrictions on transfer, other than restrictions on transfer under this Agreement and the Operating Agreement, and under applicable regional, supranational, federal, state, provincial, foreign or local law, statute, rule, regulation, order, ordinance, judgment, code or decree (each a “Law” and, collectively, “Laws”), and (ii) Taxes, liens, warrants, purchase rights, contracts, commitments, equities, demands and claims whatsoever. For the purpose of this Agreement, “Tax” means any federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Section 59A of the Internal Revenue Code of 1986, as amended), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, production personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated or other tax of any kind whatsoever, including any interest, penalty or addition thereto and any interest, penalties and additions in respect of such interest, penalties and additions, whether disputed or not.
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(f) All action on the part of the Company, its officers, directors and members necessary for the authorization of the execution and delivery of this Agreement and the Operating Agreement and the performance of all obligations of the Company hereunder and thereunder (including the authorization and issuance of the Preferred Interests being sold hereunder) has been taken as of the date hereof. The Operating Agreement and this Agreement create valid and binding obligations of the Company and are enforceable against the Company in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
(g) The Company has delivered to the Investor and NAV CANADA a pro forma balance sheet of the Company as of October 31, 2013 in the form attached hereto as Exhibit C (the “Balance Sheet”). The Balance Sheet has been prepared from and is in accordance with the Company’s books and records and fairly presents in all material respects the assets and liabilities of the Company as of the date thereof. Except as set forth in the Balance Sheet or as set forth on Schedule 8(g), as of the Initial Closing Date, the Company has no material liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to October 31, 2013 and (ii) liabilities that, individually and in the aggregate, are not material to the financial condition or operating results of the Company.
(h) Assuming the representations and warranties of the Investor in this Agreement are true and accurate, the offer, sale and issuance of the Preferred Interests as contemplated by this Agreement are exempt from the registration requirements of the Securities Act, and the qualification or registration requirements of applicable blue sky laws. Neither the Company nor any authorized agent acting on its behalf has offered or will offer or sell any securities, or has taken or will take any other action (including any offering of any securities of the Company under circumstances that would require under the Securities Act the integration of such offering with the offering and sale of the Preferred Interests being acquired hereunder), that would cause the loss of such exemptions.
(i) The Company is not in violation of any provision of the Company Organizational Documents. No third party (including Governmental Authority) notices, consents or waivers are required to be obtained or made in connection with (i) the execution, delivery and performance of this Agreement or the Operating Agreement which has not been obtained or (ii) the consummation of the transactions contemplated by this Agreement or the Operating Agreement.
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(j) The Company is in compliance in all material respects with all applicable Laws. The Company has not received any notice of, and to the Company’s knowledge, no investigation or review is in process or threatened by any Governmental Authority with respect to, any violation or alleged violation of any applicable Law. For the purpose of this Agreement, “Governmental Authority” means any supranational, national, state, provincial, local, foreign or other political subdivision thereof or entity, department, agency or instrumentality exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to the government.
(k) The Company is in compliance in all material respects with all Company Contracts. Each material Company Contract is a legal, valid and binding agreement, assuming the due authorization, execution and delivery thereof by the third-party counter-parties thereto, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting enforcement of creditors’ rights and to general equity principles, and each is in full force and effect on identical terms following the consummation of the transactions contemplated hereby. To the Company’s knowledge, no party to any material Company Contract other than the Company is in breach or default, and no event has occurred which with notice or lapse of time or both would constitute a breach or default or permit termination, modification or acceleration under any material Company Contract. The Company has performed all of its obligations required to be performed by it to date under each material Company Contract and the Company is not in breach or default, and no event has occurred which with notice or lapse of time or both would constitute a breach or default or permit termination, modification or acceleration under any material Company Contract. Other than those set forth on Schedule 8(k) hereto or as approved by the Company’s Board of Directors after the Initial Closing Date, none of the material Company Contracts was entered into outside the ordinary course of business. For the purpose of this Agreement, “Company Contract” means any agreement, contract, lease, permit, consent, settlement, option, license, authorization, instrument or other arrangement (including any employee incentive plan or grant or award thereunder) (each, a “Contract”) which the Company is a party to or bound by or to which any of its assets is subject.
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(l) Other than the Data Service Agreement, the Hosting Agreement, the Administrative Services Agreement, the Airtime Credits Agreement, the NAV CANADA Data Services Agreement, the Additional Investors Data Services Agreements and the HPOC Agreement, each as amended to date, (i) no Affiliate, shareholder, employee, officer or director of the Company or member of his or her immediate family (such Persons, collectively, “Related Parties”) is indebted to the Company, nor is the Company indebted (or committed to make loans or extend or guarantee credit) to any Related Party, in both cases, in an aggregate amount, together with any and all interest due thereunder, per any such Person greater than $10,000, except for accrued vacation pay, expense reimbursement and other accrued benefits under applicable employee benefit plans and policies of the Company in the ordinary course of business; (ii) to the Company’s knowledge, none of the Related Parties (other than any Affiliates) has any direct or indirect ownership interest in any firm or corporation with which the Company is affiliated or with which the Company has a business relationship, or any firm or corporation that competes with the Company, except that employees, members, officers or directors of the Company and members of their immediate families may own stock in publicly traded companies; and (iii) other than Contracts related to employment with or services to the Company set forth on Schedule 8(l) hereto or as approved by the Company’s Board of Directors after the Initial Closing Date, no Related Party is directly or indirectly interested in any material Company Contract or transaction or series of transactions with the Company in which the aggregate amount involved exceeds $10,000 (such Contracts and transactions, collectively, “Related Party Transactions”). All Related Party Transactions have been recorded in the books and records of the Company in accordance with applicable Law and applicable accounting standards and true, correct and complete copies of all agreements and documents relating to such Related Party Transactions and the Data Service Agreement, the Hosting Agreement and the Administrative Services Agreement have been provided to the Investor. For the purpose of this Agreement, (i) the “Data Service Agreement” means that certain Data Transmission Services Agreement No. IS-12-034 between the Company and Iridium, dated as of November 19, 2012; (ii) the “Hosting Agreement” means that certain Hosting Cost Reimbursement Agreement No. IS-12-033 between the Company and Iridium, dated as of November 19, 2012; (iii) the “Administrative Services Agreement” means that certain Amended and Restated Administrative Services Agreement between the Company and Iridium, dated as of November 19, 2012, (iv) the “Airtime Credits Agreement” means that certain Airtime Credits Agreement between the Company and Iridium dated as of October 17, 2012, (v) the “NAV CANADA Data Services Agreement” means that certain Services Agreement No. AIR-13-003 between the Company and NAV CANADA dated as of April 24, 2013, (vi) the “Additional Investors Data Services Agreements” means Services Agreements between the Company and each of Enav, IAA and Naviair on substantially the same terms as the NAV CANADA Data Services Agreement executed on or before the Second A&R Effective Date, and (vii) the “HPOC Agreement” means that certain Services Agreement No. AIR-13-007 between the Company and Iridium dated as of October 28, 2013 and Statement of Work No. 1 thereto for the Hosted Payload Operations Center.
(m) The Company has delivered to the Investor a true, complete and correct copy of the Budget. The Budget has been prepared in good faith and based on the reasonable judgment of the Company. To the knowledge of the Company, no fact, occurrence or effect has occurred that would result in any material change to the Budget.
(n) The Company is and always has been a limited liability company treated as a disregarded entity for tax purposes. The Company has timely filed all tax returns (federal, state and local) required to be filed by it, and all such returns are true, correct and complete. All taxes, if any, shown to be due and payable on such returns, any assessments imposed, and all other taxes due and payable by the Company with regard to periods through the Initial Closing, if any, whether or not shown on any return, have been paid or have been adequately provided for and will be paid prior to the time they become delinquent. There are no material liens on any assets of the Company with respect to taxes. The Company has not been advised (a) that any of its returns, federal, state or other, have been or are being audited as of the date hereof, or (b) of any deficiency in assessment or proposed judgment to its federal, state or other taxes. There are no tax liabilities to be imposed upon the Company’s properties or assets as of the date of this Agreement that are not adequately provided for. The Company has no outstanding or pending agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or reassessment of, Taxes due from the Company. The Company has not executed or entered into a closing agreement under Section 7121 of the Internal Revenue Code or any similar provision of state, local or foreign Tax law, nor is the Company subject to any private letter ruling of the IRS or comparable ruling of any other taxing authority. The Company is not a party to any contract relating to the sharing, allocation or indemnification of taxes and does not have any liability for taxes of any person under Treasury Regulations or any similar state, local of foreign tax law, as a transferee or successor or otherwise. The Company will not be required to include in a taxable period ending after the Initial Closing taxable income attributable to income that accrued in a taxable period prior to the Initial Closing but was not recognized for tax purposes in such prior taxable period.
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(o) Except as set forth in Schedule 8(o) hereto, the Company does not have any liability, obligation or arrangement to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement or the Operating Agreement.
(p) The Company satisfies all requirements set forth in the Iridium Credit Agreement to be an Excluded Company (i.e., it is not required to become an Obligor under the Iridium Credit Agreement).
9. Indemnification.
(a) The Company shall indemnify, defend and hold harmless the Investor and its Affiliates and their respective officers, directors, agents, employees, partners, members, controlling persons and Affiliates (each, an “Investor Indemnified Party” and collectively, the “Investor Indemnified Parties”) to the fullest extent permitted by law from and against any and all losses, Claims, or written threats thereof (including, without limitation, any Claim by a third party), damages, diminution in value, expenses (including reasonable fees, disbursements and other charges of counsel) or other liabilities (collectively, “Losses”) resulting from or arising out of (a) any breach of any representation or warranty of the Company in this Agreement and (b) any breach of any covenant or agreement of the Company in this Agreement or the Operating Agreement. Notwithstanding the foregoing, the Losses shall not include costs, fees and expenses incurred by any Investor Indemnified Party connection with: (i) any violations of law or governmental regulations by such Investor Indemnified Party, (ii) any acts of willful misconduct or gross negligence by such Investor Indemnified Party, (iii) any material breach of this Agreement by such Investor Indemnified Party, or (iv) any actions against such Investor Indemnified Party by creditors of such Investor Indemnified Party or shareholders or creditors of such Investor Indemnified Party’s parent companies. The amount of any payment to any Investor Indemnified Party herewith in respect of any Loss shall be of sufficient amount to make such Indemnified Party whole for any diminution in value of the Interests held by the Investor or its Affiliates caused by such Loss.
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(b) The Investor shall indemnify, defend and hold harmless the Company and its Affiliates and their respective officers, directors, agents, employees, partners, members, controlling persons and Affiliates (each, a “Company Indemnified Party” and collectively, the “Company Indemnified Parties”) to the fullest extent permitted by law from and against any and all Losses resulting from or arising out of (a) any breach of any representation or warranty of the Investor in this Agreement and (b) any breach of any covenant or agreement of the Investor in this Agreement or the Operating Agreement. Notwithstanding the foregoing, the Losses shall not include costs, fees and expenses incurred by any Company Indemnified Party connection with: (i) any violations of law or governmental regulations by such Company Indemnified Party, (ii) any acts of willful misconduct or gross negligence by such Company Indemnified Party, (iii) any material breach of this Agreement by such Company Indemnified Party, or (iv) any actions against such Investor Indemnified Party by creditors of such Company Indemnified Party or shareholders or creditors of such Company Indemnified Party’s parent companies. The amount of any payment to any Company Indemnified Party herewith in respect of any Loss shall be of sufficient amount to make such Company Indemnified Party whole for any diminution in value of the Interests held by the Members of the Company or their respective Affiliates caused by such Loss.
(c) For the purpose of this Agreement, “Claim” means any action, suit, claim, hearing, inquiry, audit, complaint, demand, litigation, arbitration or legal, civil, criminal, administrative or arbitral action, proceeding or investigation.
(d) Promptly after an Investor Indemnified Party or Company Indemnified Party (each in such capacity, an “Indemnified Party”) receives notice or becomes aware pertaining to any Claim for which the Company or the Investor (each in such capacity, an “Indemnifying Party”) may be responsible under this Section 9, the Indemnified Party shall give written notice to the Indemnifying Party of such claim in reasonable detail; provided that the failure of the Indemnified Party to give such notice shall not affect such Indemnified Party’s rights under this Section 9 except to the extent the Indemnifying Party is actually and materially prejudiced by such failure to give such notice. The Indemnifying Party shall have the right to assume and conduct the defense of any Claim filed or instituted by any third party against the Indemnified Party (each, a “Third Party Claim”); provided that such Third Party Claim does not (i) relate to or arise in connection with any criminal proceeding or allegation or (ii) seeks any remedy other than payment of monetary damages; provided further that if the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to participate in the defense thereof at its own cost.
(e) No Indemnified Party shall be entitled to recover any Losses pursuant to this Section 9 in excess of the sum of the First NAV CANADA Tranche Financing Amount and the Second NAV CANADA Tranche Financing Amount. Except for any pending Claims that remain unresolved, no Indemnified Party shall be entitled to any indemnification under this Section 9 after the six-month anniversary of the earlier of (i) the closing of the Second NAV CANADA Tranche Financing, and (ii) the Second NAV CANADA Tranche Financing Final Tranche Date (as may be extended by mutual agreement of the Investor and the Company).
10. [Reserved]
11. Survival of Agreements, Representations and Warranties. All agreements, representations and warranties contained herein or made in writing by or on behalf of the Investor and the Company in connection with the transactions contemplated by this Agreement shall survive the execution of this Agreement and the Operating Agreement, any investigation at any time made by the Investor, the Company or on behalf of any of them and the sale and purchase of the Interests and payment therefor.
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12. Legends. The Investor consents to the placement of the legend contained on the signature page of the Operating Agreement and any other legend required or advisable, as determined by Company Counsel, by applicable law.
13. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original but all of which together shall constitute one (1) and the same instrument.
14. Amendments. Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated orally, but only with the written consent of the Investor and the Company.
15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
16. Jury Trial Waiver. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER TRANSACTION DOCUMENTS. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16.
17. Venue. Subject to Section 18, each of the parties hereto (i) consents to submit itself to the personal jurisdiction of (A) the United States Courts located in the State of Delaware in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement to the extent such court would have subject matter jurisdiction with respect to such dispute and (B) the courts located in the State of Delaware; (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction or venue by motion or other request for leave from any such court; (iii) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than such courts; (iv) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to a party at its address set forth in Section 13.2 of the Operating Agreement or at such other address of which a party shall have been notified pursuant thereto; and (v) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law.
13. |
18. Dispute Resolution.
(a) The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place.
(b) Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of executives described above (“First Meeting”). Such closure shall not preclude continuing or later negotiations, if desired.
(c) All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
(d) At no time prior to the First Meeting shall either side initiate any litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of Paragraph 18(a) above.
(e) All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in Paragraphs 18(a) and (b) above are pending and for 15 calendar days thereafter. The parties will take such action, if any, required to effectuate such tolling.
(f) If the parties do not reach a resolution to the dispute within a period of thirty (30) days from the date of the First Meeting, then either party may pursue its remedies in accordance with applicable law.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
14. |
In Witness Whereof, the parties hereto have executed This Amended and Restated Subscription Agreement as of the date first above written.
AIREON LLC | ||
By: | /s/ Donald L. Thoma | |
Name: Donald L. Thoma | ||
Title: Chief Executive Officer |
NAV CANADA SATELLITE, INC. | ||
By: | /s/ John W. Crichton | |
Name: John W. Crichton | ||
Title: President |
By: | /s/ Neil R. Wilson | |
Name: Neil R. Wilson | ||
Title: Vice President and Secretary |
Signature Page to Subscription Agreement
Exhibit A
Second Amended and Restated Limited Liability Company Agreement
Exhibit B
Tranche | Capital Contribution | Preferred Interests | ||||||
First Tranche Capital Contribution | $ | 15,000,000 | 5.1 | % | ||||
Second Tranche Capital Contribution | $ | 40,000,000 | 12.19 | % | ||||
Third Tranche Capital Contribution | $ | 65,000,000 | 19.19 | % | ||||
Fourth Tranche Capital Contribution | $ | 15,000,000 | 1.66 | % | ||||
Fifth Tranche Capital Contribution | $ | 15,000,000 | 2.8 | % |
Exhibit B-1
For ease of reference, the following table sets forth the applicable post-redemption target percentages for each tranche as defined in the Operating Agreement (in the event of any conflict between the Operating Agreement and this table, the Operating Agreement shall control):
First NAV CANADA Tranche Post-Redemption Target Interest | 5.1 | % | ||
Second NAV CANADA Tranche Post-Redemption Target Interest | 13.6 | % | ||
Third NAV CANADA Tranche Post-Redemption Target Interest | 22.1 | % | ||
Fourth NAV CANADA Tranche Post-Redemption Target Interest | 5.1 | % | ||
Fifth NAV CANADA Tranche Post-Redemption Target Interest | 5.1 | % | ||
Total | 51.0 | % |
Exhibit C
Pro Forma Balance Sheet as of October 31, 2013
Schedule 7(f) - The Investor’s Knowledge
Schedule 8(b) - Capitalization and Voting Rights
Schedule 8(d)(i) - Litigation
Schedule 8(d)(ii) - The Company’s Knowledge
Schedule 8(g) - Liabilities
Schedule 8(k) - Material Company Contracts
Schedule 8(l) - Related Party Transactions
Schedule 8(o) - Brokers
AMENDMENT N° 18
TO THE
FULL SCALE SYSTEM DEVELOPMENT CONTRACT
No. IS-10-021
Between
Iridium Satellite LLC
And
THALES ALENIA SPACE FRANCE
for the
IRIDIUM NEXT SYSTEM
*** Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. | |
Execution Copy |
PREAMBLE
This Amendment N° 18 (the “Amendment”) to the Full Scale System Development Contract No. IS-10-021 signed on June 1, 2010 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, as amended, (the “Contract”) is entered into on this 21st day of October, 2013 by and between Thales Alenia Space France, a company organized and existing under the laws of France, having its registered office at 26 avenue Jean François Champollion 31100 Toulouse – FRANCE (“Contractor”), and Iridium Satellite LLC, a limited liability company organized under the laws of Delaware, having an office at 1750 Tysons Boulevard, Suite 1400, McLean, VA 22102 - USA (“Purchaser”).
RECITALS
WHEREAS, Purchaser and Contractor have engaged in discussions relating to changes the Parties would like to incorporate in the Contract to modify certain Milestones.
WHEREAS, the Parties now desire to amend Exhibit B and Exhibit D of the Contract, in accordance with the terms and conditions provided for in this Amendment.
NOW, THEREFORE, in consideration of the premises and for good and valuable consideration, the receipt and adequacy of which are hereby expressly acknowledged, and intending to be legally bound, the Parties hereby agree as follows:
Article 1: Capitalized terms used but not defined in this Amendment shall have the meanings ascribed thereto in the Contract or any amendments thereto, as the case may be.
Article 2: The Parties hereby agree to amend the SOW by revising, as applicable, the current Milestone Success Criteria applicable to the Milestones listed below with the following Milestone Success Criteria.
[***]
Article 3: [***] set forth in the Payment Plan are hereby deleted and replaced in their entirety by the following payment amounts.
[***]
Article 4: This Amendment may be executed and delivered (including via facsimile or other electronic means) in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.
Article 5: All other provisions of the Contract not expressly referred to in this Amendment remain in full force and effect.
IN WITNESS WHEREOF, the Parties have executed this Amendment by their duly authorized officers as of the date set forth in the Preamble.
IRIDIUM SATELLITE LLC | THALES ALENIA SPACE FRANCE | |
/s/ S. Scott Smith | /s/ Nathalie Smirnov | |
S. Scott Smith | Nathalie Smirnov | |
Chief Operating Officer | Executive Vice President | |
Business Line Telecommunications |
*** Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. | 1 |
Execution Copy Iridium / Thales Alenia Space Confidential & Proprietary |
ATTACHMENT I
[***]
*** Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. | 2 |
Execution Copy Iridium / Thales Alenia Space Confidential & Proprietary |
AMENDMENT N° 19
TO THE
FULL SCALE SYSTEM DEVELOPMENT CONTRACT
No. IS-10-021
Between
Iridium Satellite LLC
And
THALES ALENIA SPACE FRANCE
for the
IRIDIUM NEXT SYSTEM
*** Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. | |
Execution Copy |
PREAMBLE
This Amendment N° 19 (the “Amendment”) to the Full Scale System Development Contract No. IS-10-021 signed on June 1, 2010 between Iridium Satellite LLC and Thales Alenia Space France for the Iridium NEXT System, as amended, (the “Contract”) is entered into on this 29th day of October, 2013 (“Effective Date”) by and between Thales Alenia Space France, a company organized and existing under the laws of France, having its registered office at 26 avenue Jean François Champollion 31100 Toulouse – FRANCE (“Contractor”), and Iridium Satellite LLC, a limited liability company organized under the laws of Delaware, having an office at 1750 Tysons Boulevard, Suite 1400, McLean, VA 22102 - USA (“Purchaser”).
RECITALS
WHEREAS, Purchaser and Contractor have agreed to implement [***] into the [***] as forth in the: (i) [***]; (ii) [***]; (iii) [***]; and (iv) [***];
WHEREAS, Purchaser has agreed to purchase the [***] as set forth in: (i) [***]; and (ii) [***].
WHEREAS, Purchaser issued a letter, dated September 30, 2013, authorizing Contractor to proceed with the work necessary to implement [***], which is superseded by this Amendment; and
WHEREAS, the Parties have reached agreement on total price, milestone payment schedule and [***] for the implementation of [***].
NOW, THEREFORE, in consideration of the premises and for good and valuable consideration, the receipt and adequacy of which are hereby expressly acknowledged, and intending to be legally bound, the Parties hereby agree as follows:
Article 1: Capitalized terms used but not defined in this Amendment shall have the meanings ascribed thereto in the Contract or any amendments thereto, as the case may be.
Article 2: Article 1 of the Contract is hereby revised to add the following definition.
“[***]” means [***].
Article 3: The Base Contract Price set forth in Article 4.1 of the Contract is hereby increased by the amount of [***] U.S. Dollars (US$[***]) to a new Base Contract Price of no more than [***] U.S. Dollars (US$[***]).
Article 4: The Parties agree to amend the [***] to add the following [***].
[***]
Article 5: Article 10.4.1 is hereby modified by: (i) deleting the words “[***] meet” immediately before the text “the applicable requirements” in the first sentence; (ii) inserting the words “have been met by Contractor” at the end of the first sentence; and (iii) deleting the words “[***]” immediately before the text “[***]” in the second sentence.
Article 6: The first sentence of Article 10.4.2 is hereby revised by (i) deleting the words “[***]” immediate before the text “[***]” in the first sentence and inserting the words “[***]” in place thereof; and (ii) inserting the word “to” immediately before the text “meet the applicable requirements”.
*** Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. | 1 |
Draft Copy Iridium / Thales Alenia Space Confidential & Proprietary |
Article 7: Article 14.3.1 of the Contract is hereby revised by the addition of the following sentence directly at the end of Article 14.3.1.
“Notwithstanding the foregoing, Contractor’s obligation to resolve Satellite Defects or Anomalies set forth in this Article 14.3.1 shall [***] after completion of the last Satellite On-Orbit Satellite Acceptance of the final Satellite Batch.”
Article 8: The Parties agree to issue a Change Control Request to the SOW and SPS to reflect the requirements set forth in the Applicable Documents, as deemed applicable.
Article 9: The Payment Plan set forth in Exhibit D is hereby revised by the addition of the following Milestone payments.
[***]
Article 10: Exhibit G, Intellectual Property, to the Contract is here by revised by addition of the Applicable CDRLs as set forth below to the table entitled “Intellectual Property Rights”.
[***]
Article 11: The following tests will be suppressed from the scope of the FSA and added to the success criteria of Milestone [***] for [***].
· | [***]; and |
· | [***] |
Article 12: Milestone 142 set forth in the payment plan is hereby deleted and replaced in its entirety with the following:
[***]
Article 13: Purchaser and Contractor agree that payment of the Final System Acceptance Milestone amount shall not be due until [***]. The payment shall be subject to the Interest Rate, starting on [***] until such payment is made.
Article 14: This Amendment may be executed and delivered (including via facsimile or other electronic means) in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.
Article 15: All other provisions of the Contract not expressly referred to in this Amendment remain in full force and effect.
IN WITNESS WHEREOF, the Parties have executed this Amendment by their duly authorized officers as of the date set forth in the Preamble.
IRIDIUM SATELLITE LLC | THALES ALENIA SPACE FRANCE | |
/s/ S. Scott Smith | /s/ Nathalie Smirnov | |
S. Scott Smith | Nathalie Smirnov | |
Chief Operating Officer | Executive Vice President | |
Business Line Telecommunications |
*** Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. | 2 |
Draft Copy Iridium / Thales Alenia Space Confidential & Proprietary |
HC1047-14-C-4000 |
Section B - Supplies or Services and Prices
ITEM NO | SUPPLIES/SERVICES | QUANTITY | UNIT | UNIT PRICE | AMOUNT |
0001 | 64,000,000 | Lot | $1.00 | $64,000,000.00 | |
Year 1 FFP Pricing is effective 22 October 2013 - 21 October 2014 and is in accordance with the terms and conditions of this contract and the attached Statement of Work (reference Section J). Invoicing: The Contractor shall invoice monthly, in arrears, for acceptable services rendered. The Contractor shall invoice $5,333,333.00 for Months 1 through 11 and $5,333,337.00 for Month 12. FOB: Destination |
|||||
NET AMT | $64,000,000.00 | ||||
ACRN AA CIN: 000000000000000000000000000000 |
$64,000,000.00
|
ITEM NO | SUPPLIES/SERVICES | QUANTITY | UNIT | UNIT PRICE | AMOUNT |
0002 | 12 | Months | $6,000,000.00 | $72,000,000.00 | |
Year 2 FFP Pricing is effective 22 October 2014 - 21 October 2015 and is in accordance with the terms and conditions of this contract and the attached Statement of Work (reference Section J). Invoicing: The Contractor shall invoice monthly, in arrears, for acceptable services rendered.
FOB: Destination |
|||||
NET AMT | $72,000,000.00 | ||||
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 2 of 22 |
HC1047-14-C-4000 |
ITEM NO | SUPPLIES/SERVICES | QUANTITY | UNIT | UNIT PRICE | AMOUNT |
0003 | 88,000,000 | Lot | $1.00 | $88,000,000.00 | |
Year 3 FFP Pricing is effective 22 October 2015 - 21 October 2016 and is in accordance with the terms and conditions of this contract and the attached Statement of Work (reference Section J). The Contractor shall invoice $7,333,333.00 for Months 1 through 11 and $7,333,337.00 for Month 12. FOB: Destination |
|||||
NET AMT | $88,000,000.00 | ||||
ITEM NO | SUPPLIES/SERVICES | QUANTITY | UNIT | UNIT PRICE | AMOUNT |
0004 | 88,000,000 | Lot | $1.00 | $88,000,000.00 | |
Year 4 FFP Pricing is effective 22 October 2016 - 21 October 2017 and is in accordance with the terms and conditions of this contract and the attached Statement of Work (reference Section J). The Contractor shall invoice $7,333,333.00 for Months 1 through 11 and $7,333,337.00 for Month 12.
FOB: Destination |
|||||
NET AMT | $88,000,000.00 | ||||
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 3 of 22 |
HC1047-14-C-4000 |
ITEM NO | SUPPLIES/SERVICES | QUANTITY | UNIT | UNIT PRICE | AMOUNT |
0005 | 88,000,000 | Lot | $1.00 | $88,000,000.00 | |
Year 5 FFP Pricing is effective 22 October 2017 - 21 October 2018 and is in accordance with the terms and conditions of this contract and the attached Statement of Work (reference Section J). The Contractor shall invoice $7,333,333.00 for Months 1 through 11 and $7,333,337.00 for Month 12.
FOB: Destination |
|||||
NET AMT | $88,000,000.00 | ||||
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 4 of 22 |
HC1047-14-C-4000 |
Section C - Descriptions and Specifications
SECTION C
PERFORMANCE WORK STATEMENT
General Description of Supplies and Services
All work performed under this contract shall be provided as defined within this contract and in the applicable attachments identified and incorporated in Section J. The following document is provided in Section J and is incorporated by reference into this Section C:
a) | Statement of Work (SOW) entitled Enhanced Mobile Satellite Services Airtime dated 18 October 2013 and as amended (Section J Attachment 1). |
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 5 of 22 |
HC1047-14-C-4000 |
Section D - Packaging and Marking
MARKING REQUIREMENTS
PACKAGING AND MARKING OF DELIVERABLES
D-1 | Packaging and marking of all deliverables shall be in accordance with the best commercial practice necessary to ensure safe and timely delivery at destination, in accordance with the applicable security requirements. |
D-2 | All data and correspondence submitted to the Contracting Officer or the Contracting Officer's Representative (COR) shall reference the contract number and the name of the Contract Specialist and/or COR as appropriate. A copy of all correspondence sent to the COR shall be provided to the Contracting Officer. |
D-3 | Distribution marking shall be in accordance with the latest edition of DOD Directive 5230.24. Technical data submitted with limited rights, restricted rights, and copyrights shall be marked in accordance with DFARS 252.227-7013 or DFARS 252.227-7015 as applicable. |
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 6 of 22 |
HC1047-14-C-4000 |
Section E - Inspection and Acceptance
INSPECTION AND ACCEPTANCE TERMS
Supplies/services will be inspected/accepted at:
CLIN | INSPECT AT | INSPECT BY | ACCEPT AT | ACCEPT BY |
0001 | Destination | Government | Destination | Government |
0002 | Destination | Government | Destination | Government |
0003 | Destination | Government | Destination | Government |
0004 | Destination | Government | Destination | Government |
0005 | Destination | Government | Destination | Government |
CLAUSES INCORPORATED BY REFERENCE
52.246-4 | Inspection Of Services--Fixed Price | AUG 1996 |
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 7 of 22 |
HC1047-14-C-4000 |
Section F - Deliveries or Performance
DELIVERY INFORMATION
CLIN | DELIVERY DATE | QUANTITY | SHIP TO ADDRESS | UIC |
0001 |
POP 22-OCT-2013 TO 21-OCT-2014 |
N/A |
DEFENSE INFORMATION SYSTEMS AGENCY BRENDAN MOLLOY P.O. BOX 549 FT. MEADE MD 20755 301-225-4847 FOB: Destination |
HC1047 |
0002 |
POP 22-OCT-2014 TO 21-OCT-2015 |
N/A |
(SAME AS PREVIOUS LOCATION) FOB: Destination |
HC1047 |
0003 |
POP 22-OCT-2015 TO 21-OCT-2016 |
N/A |
(SAME AS PREVIOUS LOCATION) FOB: Destination |
HC1047 |
0004 |
POP 22-OCT-2016 TO 21-OCT-2017 |
N/A |
(SAME AS PREVIOUS LOCATION) FOB: Destination |
HC1047 |
0005 |
POP 22-OCT-2017 TO 21-OCT-2018 |
N/A |
(SAME AS PREVIOUS LOCATION) FOB: Destination |
HC1047 |
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 8 of 22 |
HC1047-14-C-4000 |
Section G - Contract Administration Data
ACCOUNTING AND APPROPRIATION DATA
AA: 97X4930.5F20 000 C1013 0 068142 2F 233003 Y7BXXM EMSBB CMTNSK147011 |
AMOUNT: $64,000,000.00 |
CIN 000000000000000000000000000000: $64,000,000.00 |
CLAUSES INCORPORATED BY REFERENCE
252.232-7003 | Electronic Submission of Payment Requests and Receiving Reports | JUN 2012 |
CLAUSES INCORPORATED BY FULL TEXT
52.204-9000 Points of Contact (AUG 2005)
Contracting Officer
Name: Clare A. Grason
Organization/Office Symbol: DITCO/NCR/PL64
Phone No.: (301)-225-4076
E-Mail Address: clare.a.grason.civ@mail.mil
Contract Specialist
Name: Marilena May
Organization/Office Symbol: DITCO/NCR/PL64
Phone No.: (301)-225-4523
E-Mail Address: marilena.j.may.civ@mail.mil
Customer/COR/TM Point of Contact
Name: Brendan Molloy
Organization/Office Symbol: NSK1
Phone No.: (301)-225-4847
E-Mail Address: brendan.j.molloy.civ@mail.mil
Contractor Point of Contact
Contractor Legal Business Name: Iridium Satellite LLC
DUNS: 148549087
CAGE CODE: 1R7A4
Contractor POC: Scott Scheimreif
E-Mail Address: Scott.Scheimreif@iridium.com
Phone Number: 703-287-7446 OR 202-297-2959
Fax Number: 703-287-7540
(End of clause)
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 9 of 22 |
HC1047-14-C-4000 |
52.232-9002 ELECTRONIC INVOICING FOR TELECOMMUNICATIONS SERVICES (DEC 2012)
Electronic invoices shall be submitted to the Defense Financial and Accounting Services (DFAS) for telecommunications services. For further details and instructions go to: http://www.dfas.mil/contractorsvendors/faqs.html, or contact DFAS Systems Support Operations at CCO-FAB@DFAS.mil or DFAS customer service at 800-756-4571, option 2, then option 1.
(End of clause)
252.232-7006 WIDE AREA WORKFLOW PAYMENT INSTRUCTIONS (JUN 2012)
(a) Definitions. As used in this clause--
Department of Defense Activity Address Code (DoDAAC) is a six position code that uniquely identifies a unit, activity, or organization.
Document type means the type of payment request or receiving report available for creation in Wide Area WorkFlow (WAWF).
Local processing office (LPO) is the office responsible for payment certification when payment certification is done external to the entitlement system.
(b) Electronic invoicing. The WAWF system is the method to electronically process vendor payment requests and receiving reports, as authorized by DFARS 252.232-7003, Electronic Submission
of Payment Requests and Receiving Reports.
(c) WAWF access. To access WAWF, the Contractor shall--
(1) Have a designated electronic business point of contact in the Central Contractor Registration at https://www.acquisition.gov; and
(2) Be registered to use WAWF at https://wawf.eb.mil/ following the step-by-step procedures for self-registration available at this Web site.
(d) WAWF training. The Contractor should follow the training instructions of the WAWF Web-Based Training Course and use the Practice Training Site before submitting payment requests through
WAWF. Both can be accessed by selecting the “Web Based Training” link on the WAWF home page at https://wawf.eb.mil/.
(e) WAWF methods of document submission. Document submissions may be via Web entry, Electronic Data Interchange, or File Transfer Protocol.
(f) WAWF payment instructions. The Contractor must use the following information when submitting payment requests and receiving reports in WAWF for this contract/order:
(1) Document type. The Contractor shall use the following document type(s).
Services Only, select “2-n-1 (Services Only)”
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 10 of 22 |
HC1047-14-C-4000 |
(Contracting Officer: Insert applicable document type(s). Note: If a “Combo” document type is identified but not supportable by the Contractor's business systems, an “Invoice” (stand-alone) and
“Receiving Report” (stand-alone) document type may be used instead.)
(2) Inspection/acceptance location. The Contractor shall select the following inspection/acceptance location(s) in WAWF, as specified by the contracting officer.
Not Applicable.
(3) Document routing. The Contractor shall use the information in the Routing Data Table below only to fill in applicable fields in WAWF when creating payment requests and receiving reports in the
system.
Routing Data Table* | ||
Field Name in WAWF | Data to be entered in WAWF | |
Pay Official DoDAAC | HQ0131 | |
Issue By DoDAAC | HC1047 | |
Admin DoDAAC | HC1047 | |
Inspect By DoDAAC | ____ | |
Ship To Code | HC1047 | |
Ship From Code | ____ | |
Mark For Code | ____ | |
Service Approver (DoDAAC) | ____ | |
Service Acceptor (DoDAAC) | HC1047 | |
Accept at Other DoDAAC | ____ | |
LPO DoDAAC | ____ | |
DCAA Auditor DoDAAC | ____ | |
Other DoDAAC(s) | ____ | |
(4) Payment request and supporting documentation. The Contractor shall ensure a payment request includes appropriate contract line item and subline item descriptions of the work performed or supplies delivered, unit price/cost per unit, fee (if applicable), and all relevant back-up documentation, as defined in DFARS Appendix F, (e.g. timesheets) in support of each payment request.
(5) WAWF email notifications. The Contractor shall enter the email address identified below in the “Send Additional Email Notifications” field of WAWF once a document is submitted in the system.
Acceptor: | Brendan Molloy |
Name: | Brendan Molloy |
Phone Number: | 301-225-4847 |
E-Mail: | brendan.j.molloy.civ@mail.mil |
(g) WAWF point of contact. (1) The Contractor may obtain clarification regarding invoicing in WAWF from the following contracting activity's WAWF point of contact.
http://www.ditco.disa.mil/hq/WAWF/.
(2) For technical WAWF help, contact the WAWF helpdesk at 866-618-5988.
(End of clause)
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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Section H - Special Contract Requirements
DARS 52.239-9001
52.239-9001 Data Information Assurance Protection
DATA INFORMATION ASSURANCE PROTECTION (JULY 2006)
(a) The contractor shall protect and safeguard sensitive Government Provided Information (GFI) and data from inadvertent disclosure, misuse, display, theft, and unauthorized actions that would destroy or render the information unavailable for specific government use. Should the contractor, or one of his/her employees, make any inadvertent or any unauthorized disclosure(s) or willfully participate in activities that result in detrimental harm to the protection and safeguarding of sensitive (GFI) and data, such actions may be considered to be a breach of this contract and the terms of the Default clause may be invoked. The contractor shall afford safeguarding consistent with the protection requirements identified by the government until such time the government deems the information/data is no longer sensitive and provides corresponding written notification to the contractor.
(b) All contractor and support contractor personnel with access to DISA and DOD Information Systems shall complete initial information assurance awareness and annual refresher training in accordance with DOD Directive, 8570.01, IA Training, Certification, and Workforce Management. Contractors shall submit their proof training or certification to the Contracting Officer’s Representative within 30 days of contract award.
(c) To support IA professionals, the DoD IA Portal (IA Support Environment (IASE)) provides DOD IA policy-training requirements and DoD sponsored training. The IA Portal is located at http://iase.disa.mil. This site also provides access to DOD Directive 8500.1, Information Assurance (IA), and DOD 8570.1-M, Information Assurance Workforce Improvement Program.
(End of clause)
CONTRACT FUNDING
H1 – Contract Funding
The legal authority for this multi-year contract is 40 USC 501(b)(1)(B) and DFARS subpart 239.74. This contract may be funded incrementally on an annual basis according to the following schedule:
CLIN 0001 | $64,000,000.00 |
CLIN 0002 | $72,000,000.00 |
CLIN 0003 | $88,000,000.00 |
CLIN 0004 | $88,000,000.00 |
CLIN 0005 | $88,000,000.00 |
Iridium shall be entitled to submit monthly invoices in arrears for services rendered during the PoP of each CLIN in amounts equal to 1/12 of the total price for that CLIN.
SUBSCRIPTIONS
H2 – Subscriptions
a) The terms and conditions contained within this clause (“H2”) pertain to Contract Line Items (CLINs) 0001 through 0005.
b) [***]. The prices agreed to herein are effective regardless of the actual number of users.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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c) Any and all DISA-Sponsored subscribers (users) may utilize this contract. DISA-Sponsored subscribers may include all United States Government Federal Agencies, states and municipalities within the United States or United States territories, United States Government allies, and other people, organizations or nations sponsored by DISA.
SATELLITE NETWORK ACCESS
H3 – Satellite Network Access
The Government and Iridium hereby commit to the establishment of fair and reasonable policies for the effective utilization of the Iridium Satellite Constellation. The intent of these policies will be to explain the proper and optimal use of the services offered herein as improper use can be detrimental to network performance and therefore service quality. These policies shall include the identification of limitations and/or constraints associated to enhanced services (specifically [***] and [***]), mechanisms and procedures for detecting, reporting, interpreting, and remedying issues or problems specific to subscribers (users) covered under this contract; the remediation of issues or problems may include a multiple step process up to and including disruption of service.
CONTRACT SCOPE
H4 – Contract Scope
The following Iridium airtime services are provided on an unlimited basis under this contract for an unlimited number of DISA-Sponsored subscribers (users).
1) Voice Data Services: Includes Basic Telephony, Secure Voice, Facsimile, RUDICS Services, and follow-on or future voice-enabling capabilities.
2) Paging Services: Includes Stand-alone & Follow-Me Paging Services, and follow-on or future paging-enabling capabilities.
3) Short Burst Data Services and follow-on or future Short Burst Data-enabling capabilities.
4) Distributed Tactical Communications System (DTCS) or “Multicast” Services, including existing capabilities and all future evolutions of the service.
5) OpenPort Services for up to ten (10) OpenPort devices. This Service is effective subject to the separately authorized deployment of OpenPort infrastructure at the EMSS Gateway.
6) [***]
7) Position Location Information (PLI) will be provided for all applicable services under this contract.
PRIORITY OF SERVICE
H5 – Priority of Service
Iridium agrees to provide up to [***] priority SIM cards for DISA-Sponsored users.
The basis for Iridium Priority, Precedence, and Pre-Emption (PPP) service is the set of mechanisms designed for, and already implemented in, the Iridium Satellite Network for signaling and system management purposes. The Iridium Satellite Network utilizes two resource management functions, Acquisition Class (AC) control and Priority Class (PC) control, to assure access to communication channels for priority users. PPP service is currently available for Subscriber Information Module (SIM) based services only. Only subscriber devices with the proper AC are allowed to start the acquisition process. ACs range from [***]. Currently, ACs [***] and [***] are under SV flow control for non-safety and non-priority Iridium devices. ACs [***] and [***] are not under SV flow control and can be utilized to designate priority service over the constellation. DoD priority SIM cards will be assigned AC [***].
The AC governs which subscriber devices will be permitted access to the satellite constellation while the PC provides continued access for DoD priority calls. The Iridium Satellite Network supports four Priority Class levels. Each satellite has priority queuing for both channel assignment of new calls and handoff order of in-progress calls. High priority calls take precedence and are queued before low priority calls. There are [***] levels of PC that can be mapped based on DoD requirements:
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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PC [***]
PC [***]
PC [***]
PC [***]
Iridium and the Government will coordinate to develop and establish acceptable Information Assurance (IA) processes which comply with applicable Government Information Assurance regulations and directives and that also conform to Iridium’s priority of service protocol.
SERVICE AVAILABILITY
H6 – Service Availability
Service availability is defined as the ability of an EMSS customer to be able to obtain and maintain service connectivity for any service under this contract.
Iridium is required to meet the service availability requirements defined and contained within this contract’s Statement of Work.
[***]
Any credit shall be applied to the invoice for the applicable month in which the actual service performance did not meet the target service performance metric; provided, however, that in no event shall the total disincentive payment credits for an individual contract year exceed [***].
The [***] and [***] exclude any outage that may be caused by: (1) interference caused by Ka-Band transmissions from other satellite systems; (2) outages resulting from issues in Ka-Band connectivity between the Iridium constellation and the EMSS Gateway that are capable of being resolved through implementation of a remote Earth Terminal solution, but excluding outages resulting from Iridium network anomalies that would not be resolved by a remote Earth Terminal solution; (3) the EMSS Gateway (such as autodialers placed in locations with obscura or the lack of timely coordination with Iridium for autodialers exhibiting performance issues); and/or (4) outages outside the control of Iridium, such as an act of nature (such as heavy rainstorms, tropical storms and/or hurricanes), act of Government, act of war, act of terrorism or other force majeure, all of which will excuse Iridium from meeting the [***] and/or [***] provided above. The following definitions apply to this clause: [***]
The data necessary to be gathered from the DoD Gateway in support of Iridium's monthly reporting of the [***] and the [***] will be supplied by the Government in a timely manner as mutually agreed between Iridium and the Government.
CANCELLATION OR TERMINATION
H7 – Addendum to DFARs 252.239-7007, “Cancellation or Termination of Orders”
Iridium agrees that the amount of the Basic Cancellation or Termination Liability of the Government governed by the clause at DFARS 252.239-7007, “Cancellation or Termination of Orders” shall be $[***], which constitutes the “mutually agreed schedule” under DFARS 252.239-7007(c). Iridium acknowledges that: (1) Iridium will not incur any nonrecoverable costs in providing facilities and equipment for which Iridium has no foreseeable use as described in DFARS 252.239-7007(a); (2) there are no tariffs that govern any cancellation and termination charges under this contract as described in DFARS 252.239-7007(b); (3) no communication services authorization shall affect the amount of the Basic Cancellation or Termination Liability of the Government; (4) this clause H7 constitutes an “other contractual document” as that term is use in DFARS 252.239-7007(c); and (5) the provisions of DFARS 252.239-7007(d), are mooted by the provisions of this Clause H7. The foregoing notwithstanding, Iridium shall be entitled to receive a partial payment for a prorated portion of the monthly period during which services were provided prior to the date the Government notifies Iridium that this contract is cancelled. The Government shall not be liable to pay any amount of the total contract price for services that would have been provided by Iridium after such notification of the cancellation of this contract.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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CONTRACT MARKETING
H8 – Contract Marketing
Iridium agrees that it will not enter into competing contracts that provide the same or similar services covered under this contract with any other United States Government entity, with the exception of the General Services Administration. Any additional exceptions will be expressly provided by the DISA.
Iridium agrees to apply a “commercially reasonable efforts” approach to educate and inform the DISA-Sponsored EMSS user community of the benefits pertaining to this contract. This may include promoting the contract to potential customers at conferences and other events.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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Section I - Contract Clauses
CLAUSES INCORPORATED BY REFERENCE
52.202-1 | Definitions | JAN 2012 | ||
52.203-3 | Gratuities | APR 1984 | ||
52.203-5 | Covenant Against Contingent Fees | APR 1984 | ||
52.203-6 Alt I | Restrictions On Subcontractor Sales To The Government (Sep 2006) -- Alternate I | OCT 1995 | ||
52.203-7 | Anti-Kickback Procedures | OCT 2010 | ||
52.203-8 | Cancellation, Rescission, and Recovery of Funds for Illegal or Improper Activity | JAN 1997 | ||
52.203-10 | Price Or Fee Adjustment For Illegal Or Improper Activity | JAN 1997 | ||
52.203-12 | Limitation On Payments To Influence Certain Federal Transactions | OCT 2010 | ||
52.203-13 | Contractor Code of Business Ethics and Conduct | APR 2010 | ||
52.204-2 | Security Requirements | AUG 1996 | ||
52.204-4 | Printed or Copied Double-Sided on Postconsumer Fiber Content Paper | MAY 2011 | ||
52.204-9 | Personal Identity Verification of Contractor Personnel | JAN 2011 | ||
52.204-10 | Reporting Executive Compensation and First-Tier Subcontract Awards | AUG 2012 | ||
52.204-13 | Central Contractor Registration Maintenance | DEC 2012 | ||
52.209-6 | Protecting the Government's Interest When Subcontracting With Contractors Debarred, Suspended, or Proposed for Debarment | DEC 2010 | ||
52.209-9 | Updates of Publicly Available Information Regarding Responsibility Matters | FEB 2012 | ||
52.215-2 | Audit and Records--Negotiation | OCT 2010 | ||
52.215-15 | Pension Adjustments and Asset Reversions | OCT 2010 | ||
52.215-18 | Reversion or Adjustment of Plans for Postretirement Benefits (PRB) Other than Pensions | JUL 2005 | ||
52.215-19 | Notification of Ownership Changes | OCT 1997 | ||
52.215-21 | Requirements for Certified Cost or Pricing Data or Information Other Than Certified Cost or Pricing Data--Modifications | OCT 2010 | ||
52.215-23 | Limitations on Pass-Through Charges | OCT 2009 | ||
52.219-8 | Utilization of Small Business Concerns | JAN 2011 | ||
52.219-9 Alt II | Small Business Subcontracting Plan (JAN 2011) Alternate II | OCT 2001 | ||
52.219-16 | Liquidated Damages-Subcontracting Plan | JAN 1999 | ||
52.219-28 | Post-Award Small Business Program Rerepresentation | APR 2012 | ||
52.222-3 | Convict Labor | JUN 2003 | ||
52.222-19 | Child Labor -- Cooperation with Authorities and Remedies | MAR 2012 | ||
52.222-21 | Prohibition Of Segregated Facilities | FEB 1999 | ||
52.222-26 | Equal Opportunity | MAR 2007 | ||
52.222-35 | Equal Opportunity for Veterans | SEP 2010 | ||
52.222-36 | Affirmative Action For Workers With Disabilities | OCT 2010 | ||
52.222-37 | Employment Reports on Veterans | SEP 2010 | ||
52.222-40 | Notification of Employee Rights Under the National Labor Relations Act | DEC 2010 | ||
52.222-50 | Combating Trafficking in Persons | FEB 2009 | ||
52.222-53 | Exemption from Application of the Service Contract Act to Contracts for Certain Services--Requirements | FEB 2009 |
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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52.222-54 | Employment Eligibility Verification | JUL 2012 | ||
52.223-6 | Drug-Free Workplace | MAY 2001 | ||
52.223-18 | Encouraging Contractor Policies To Ban Text Messaging While Driving | AUG 2011 | ||
52.225-13 | Restrictions on Certain Foreign Purchases | JUN 2008 | ||
52.227-1 Alt II | Authorization and Consent (Dec 2007) - Alternate II | APR 1984 | ||
52.227-2 | Notice And Assistance Regarding Patent And Copyright Infringement | DEC 2007 | ||
52.229-4 | Federal, State, And Local Taxes (State and Local Adjustments) | FEB 2013 | ||
52.230-6 | Administration of Cost Accounting Standards | JUN 2010 | ||
52.232-6 | Payment Under Communication Service Contracts with Common Carriers | APR 1984 | ||
52.232-8 | Discounts For Prompt Payment | FEB 2002 | ||
52.232-11 | Extras | APR 1984 | ||
52.232-17 | Interest | OCT 2010 | ||
52.232-19 | Availability Of Funds For The Next Fiscal Year | APR 1984 | ||
52.232-23 | Assignment Of Claims | JAN 1986 | ||
52.232-25 | Prompt Payment | OCT 2008 | ||
52.232-33 | Payment by Electronic Funds Transfer--Central Contractor Registration | OCT 2003 | ||
52.233-1 Alt I | Disputes (Jul 2002) - Alternate I | DEC 1991 | ||
52.233-3 | Protest After Award | AUG 1996 | ||
52.233-4 | Applicable Law for Breach of Contract Claim | OCT 2004 | ||
52.237-3 | Continuity Of Services | JAN 1991 | ||
52.239-1 | Privacy or Security Safeguards | AUG 1996 | ||
52.242-13 | Bankruptcy | JUL 1995 | ||
52.242-15 | Stop-Work Order | AUG 1989 | ||
52.242-17 | Government Delay Of Work | APR 1984 | ||
52.243-1 Alt I | Changes--Fixed Price (Aug 1987) - Alternate I | APR 1984 | ||
52.244-6 | Subcontracts for Commercial Items | DEC 2010 | ||
52.246-25 | Limitation Of Liability--Services | FEB 1997 | ||
52.249-4 | Termination For Convenience Of The Government (Services) (Short Form) | APR 1984 | ||
52.249-8 | Default (Fixed-Price Supply & Service) | APR 1984 | ||
52.249-14 | Excusable Delays | APR 1984 | ||
52.252-2 | Clauses Incorporated By Reference | FEB 1998 | ||
52.252-4 | Alterations in Contract | APR 1984 | ||
52.252-6 | Authorized Deviations In Clauses | APR 1984 | ||
52.253-1 | Computer Generated Forms | JAN 1991 | ||
252.201-7000 | Contracting Officer's Representative | DEC 1991 | ||
252.203-7000 | Requirements Relating to Compensation of Former DoD Officials | SEP 2011 | ||
252.203-7002 | Requirement to Inform Employees of Whistleblower Rights | JAN 2009 | ||
252.203-7003 | Agency Office of the Inspector General | DEC 2012 | ||
252.203-7004 | Display of Fraud Hotline Poster(s) | DEC 2012 | ||
252.204-7000 | Disclosure Of Information | DEC 1991 | ||
252.204-7003 | Control Of Government Personnel Work Product | APR 1992 | ||
252.204-7004 Alt A | Central Contractor Registration Alternate A | FEB 2013 | ||
252.204-7005 | Oral Attestation of Security Responsibilities | NOV 2001 | ||
252.205-7000 | Provision Of Information To Cooperative Agreement Holders | DEC 1991 | ||
252.209-7004 | Subcontracting With Firms That Are Owned or Controlled By The Government of a Terrorist Country | DEC 2006 |
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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252.212-7001 (Dev) | Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to Defense Acquisitions of Commercial Items (Deviation) | DEC 2010 | ||
252.215-7000 | Pricing Adjustments | DEC 2012 | ||
252.215-7002 | Cost Estimating System Requirements | DEC 2012 | ||
252.219-7003 | Small Business Subcontracting Plan (DOD Contracts) | AUG 2012 | ||
252.222-7006 | Restrictions on the Use of Mandatory Arbitration Agreements | DEC 2010 | ||
252.223-7004 | Drug Free Work Force | SEP 1988 | ||
252.225-7004 | Report of Intended Performance Outside the United States and Canada--Submission after Award | OCT 2010 | ||
252.225-7006 | Quarterly Reporting of Actual Contract Performance Outside the United States | OCT 2010 | ||
252.225-7012 | Preference For Certain Domestic Commodities | FEB 2013 | ||
252.225-7012 | Preference For Certain Domestic Commodities | FEB 2013 | ||
252.226-7001 | Utilization of Indian Organizations and Indian-Owned Economic Enterprises, and Native Hawaiian Small Business Concerns | SEP 2004 | ||
252.227-7013 | Rights in Technical Data--Noncommercial Items | JUN 2013 | ||
252.227-7014 | Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation | MAY 2013 | ||
252.227-7015 | Technical Data--Commercial Items | JUN 2013 | ||
252.237-7010 | Prohibition on Interrogation of Detainees by Contractor Personnel | NOV 2010 | ||
252.237-7023 | Continuation of Essential Contractor Services | OCT 2010 | ||
252.239-7002 | Access | DEC 1991 | ||
252.239-7004 | Orders For Facilities And Services | NOV 2005 | ||
252.239-7005 | Rates, Charges, And Services | NOV 2005 | ||
252.239-7006 | Tariff Information | JUL 1997 | ||
252.239-7008 | Reuse Arrangements | DEC 1991 | ||
252.239-7016 | Telecommunications Security Equipment, Devices, Techniques, And Services | DEC 1991 | ||
252.243-7001 | Pricing Of Contract Modifications | DEC 1991 | ||
252.243-7002 | Requests for Equitable Adjustment | DEC 2012 | ||
252.244-7000 | Subcontracts for Commercial Items and Commercial Components (DoD Contracts) | MAR 2013 | ||
252.247-7023 | Transportation of Supplies by Sea | MAY 2002 |
CLAUSES INCORPORATED BY FULL TEXT
52.204-9001 Contract/Order Closeout—Fixed-Price, Time-and-Materials, or Labor-Hours
Timely contract closeout is a priority under this contract/order. The Contractor shall submit a final invoice within ninety (90) calendar days after the expiration of this contract/order, unless the Contractor requests and is granted an extension by the Contracting Officer, in writing. In addition, and concurrent with the submission of the final invoice, the Contractor shall notify the Contracting Officer of the amount of excess funds that can be deobligated from this contract/order so the closeout process can begin as soon as possible upon expiration of this contract/order. A bilateral contract/order closeout modification will be forwarded to the Contractor by the Contracting Officer and must be signed by the Contractor and returned to the Contracting Officer within thirty (30) calendar days of issuance of the modification. A Contractor’s failure to respond and/or sign the bilateral closeout modification within thirty (30) calendar days of receipt will constitute approval of the terms of the modification and the modification will subsequently be processed unilaterally by the Contracting Officer to deobligate excess funds and close this contract/order.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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If this contract/order contains option periods, the Contractor is required to submit an invoice within ninety (90) calendar days after expiration of the base period of performance and the expiration of each exercised option period of performance to allow for deobligation of excess funds that were obligated in those respective periods of performance.
(End of clause)
52.209-9000 ORGANIZATIONAL AND CONSULTANT CONFLICTS OF INTEREST (OCCI) (DEC 2005)
(a) An offeror shall identify in its proposal, quote, bid or any resulting contract, any potential or actual Organizational and Consultant Conflicts of Interest (OCCI) as described in FAR Subpart 9.5. This includes actual or potential conflicts of interests of proposed subcontractors. If an offeror identifies in its proposal, quote, bid or any resulting contract, a potential or actual conflict of interests the offeror shall submit an Organizational and Consultant Conflicts of Interest Plan (OCCIP) to the contracting officer. The OCCIP shall describe how the offeror addresses potential or actual conflicts of interest and identify how they will avoid, neutralize, or mitigate present or future conflicts of interest.
(b) Offerors must consider whether their involvement and participation raises any OCCI issues, especially in the following areas when:
(1) Providing systems engineering and technical direction.
(2) Preparing specifications or work statements and/or objectives.
(3) Providing evaluation services.
(4) Obtaining access to proprietary information.
(c) If a prime contractor or subcontractor breaches any of the OCCI restrictions, or does not disclose or misrepresents any relevant facts concerning its conflict of interest, the government may take appropriate action, including terminating the contract, in additional to any remedies that may be otherwise permitted by the contract or operation of law.
(End of clause)
52.217-8 OPTION TO EXTEND SERVICES (NOV 1999)
The Government may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor. The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months. The Contracting Officer may exercise the option by written notice to the Contractor within 15 days prior to the expiration of the contract.
(End of clause)
252.239-7007 CANCELLATION OR TERMINATION OF ORDERS (NOV 2005)
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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(a)If the Government cancels any of the services ordered under this agreement/contract, before the services are made available to the Government, or terminates any of these services after they are made available to the Government, the Government shall reimburse the Contractor for the actual nonrecoverable costs the Contractor has reasonably incurred in providing facilities and equipment for which the Contractor has no foreseeable reuse.
(b)The amount of the Government's liability upon cancellation or termination of any of the services ordered under this agreement/contract will be determined under applicable tariffs governing cancellation and termination charges which--
(1)Are filed by the Contractor with a governmental regulatory body, as defined in the Rates, Charges, and Services clause of this agreement/contract;
(2) Are in effect on the date of termination; and
(3)Provide specific cancellation or termination charges for the facilities and equipment involved or show how to determine the charges.
(c)The amount of the Government's liability upon cancellation or termination of any of the services ordered under this agreement/contract, which are not subject to a governmental regulatory body, will be determined under a mutually agreed schedule in the communication services authorization (CSA) or other contractual document.
(d)If no applicable tariffs are in effect on the date of cancellation or termination or set forth in the applicable CSA or other contractual document, the Government's liability will be determined under the following settlement procedures--
(1)The Contractor agrees to provide the Contracting Officer, in such reasonable detail as the Contracting Officer may require, inventory schedules covering all items of property or facilities in the Contractor's possession, the cost of which is included in the Basic Cancellation or Termination Liability for which the Contractor has no foreseeable reuse.
(2)The Contractor shall use its best efforts to sell property or facilities when the Contractor has no foreseeable reuse or when the Government has not exercised its option to take title under the Title to Telecommunications Facilities and Equipment clause of this agreement/contract. The Contractor shall apply any proceeds of the sale to reduce any payments by the Government to the Contractor under a cancellation or termination settlement.
(3)The Contractor shall record actual nonrecoverable costs under established accounting procedures prescribed by the cognizant governmental regulatory authority or, if no such procedures have been prescribed, under generally accepted accounting procedures applicable to the provision of telecommunication services for public use.
(4)The actual nonrecoverable costs are the installed costs of the facilities and equipment, less cost of reusable materials, and less net salvage value. Installed costs shall include the actual cost of equipment and materials specifically provided or used, plus the actual cost of installing (including engineering, labor, supervision, transportation, rights-of-way, and any other items which are chargeable to the capital accounts of the Contractor) less any costs the Government may have directly reimbursed the Contractor under the Special Construction and Equipment Charges clause of this agreement/contract. Deduct from the Contractor's installed cost, the net salvage value (salvage value less cost of removal). In determining net salvage value, give consideration to foreseeable reuse of the facilities and equipment by the Contractor. Make allowance for the cost of dismantling, removal, reconditioning, and disposal of the facilities and equipment when necessary either to the sale of facilities or their reuse by the Contractor in another location.
(5)The Basic Cancellation Liability is defined as the actual nonrecoverable cost which the Government shall reimburse the Contractor at the time services are cancelled. The Basic Termination Liability is defined as the nonrecoverable cost amortized in equal monthly increments throughout the liability period. Upon termination of services, the Government shall reimburse the Contractor for the nonrecoverable cost less such costs amortized to the date services are terminated. Establish the liability period as mutually agreed to but not to exceed ten years.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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(6)When the Basic Cancellation or Termination Liability established by the CSA or other contractual document is based on estimated costs, the Contractor agrees to settle on the basis of actual cost at the time of termination or cancellation.
(7)The Contractor agrees that, if after settlement but within the termination liability period of the services, should the Contractor make reuse of equipment or facilities which were treated as nonreusable or nonsalvable in the settlement, the Contractor shall reimburse the Government for the value of the equipment or facilities.
(8) The Contractor agrees to exclude--
(i)Any costs which are not included in determining cancellation and termination charges under the Contractor's standard practices or procedures; and
(ii)Charges not ordinarily made by the Contractor for similar facilities or equipment, furnished under similar circumstances.
(e)The Government may, under such terms and conditions as it may prescribe, make partial payments and payments on account against costs incurred by the Contractor in connection with the cancelled or terminated portion of this agreement/contract. The Government may make these payments if in the opinion of the Contracting Officer the total of the payments is within the amount the Contractor is entitled. If the total of the payments is in excess of the amount finally agreed or determined to be due under this clause, the Contractor shall pay the excess to the Government upon demand.
(f)Failure to agree shall be a dispute concerning a question of fact within the meaning of the Disputes clause.
(End of clause)
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 21 of 22 |
HC1047-14-C-4000 |
Section J - List of Documents, Exhibits and Other Attachments
ATTACHMENTS
LIST OF ATTACHMENTS
1. | Statement of Work entitled Enhanced Mobile Satellite Services Airtime dated 18 Oct 2013 is incorporated into this contract. |
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 22 of 22 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
Defense Information System Network
Enhanced Mobile Satellite Services (EMSS) Airtime
Statement of Work
18 Oct 2013
Defense Information Systems Agency (DISA)
Enhance Mobile Satellite Service (EMSS), NSK1
6910 Cooper Ave, Ft. Meade, Md 20735
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 1 of 20 |
Table of Contents
1.0 Overview | 4 |
1.1 Background | 4 |
1.2 Contract Scope | 4 |
1.2.1 Definitions | 5 |
Subscriber | 5 |
Follow-Me Paging | 5 |
Stand-Alone Paging | 6 |
SIM | 6 |
Short Burst Data | 6 |
Multicast | 6 |
Global Multicast | 6 |
Global Data Broadcast | 6 |
OpenPort | 7 |
L-Band Transceiver | 7 |
Help Services | 7 |
2.0 EMSS CONTRACT REQUIREMENTS | 7 |
2.1 EMSS PROGRAM MANAGEMENT | 8 |
2.1.2 Progress Reporting | 8 |
2.1.3 Semi-Annual Planning and Design Review | 8 |
2.2 Configuration Management Controls | 9 |
2.3 EMSS SERVICES | 10 |
2.3.1 EMSS Connection Services | 10 |
2.3.2 Priority of Service | 11 |
2.3.3 Service Availability | 11 |
2.3.4 Quality of Service | 12 |
2.3.4.1 [***] | 12 |
2.3.5 Outage Reporting | 13 |
2.3.6 Host Nation and Franchise Operation Rights | 13 |
2.4 Emergency Management | 13 |
2.5 Security Incident Reporting | 14 |
2.6 Implementation of Planned EMSS System Enhancements | 14 |
3.0 Place Of Performance | 15 |
4.0 Period Of Performance | 16 |
5.0 Deliverables | 16 |
6.0 Security Requirements | 17 |
6.1 Facility Security Clearance | 17 |
6.2 Security Clearance and Information Technology (IT) Level | 17 |
6.3 Investigation Requirements | 17 |
6.4 Visit Authorization Letters | 18 |
6.5 Information Security and other miscellaneous requirements | 18 |
6.6 COMSEC | 18 |
29 April 2013
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 2 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
6.7 Defense Courier Service (DCS) | 18 |
6.8 GOVERNMENT-FURNISHED EQUIPMENT (GFE)/GOVERNMENT-FURNISHED INFORMATION (GFI) | 19 |
7.0 OTHER PERTINENT INFORMATION OR SPECIAL CONSIDERATIONS | 19 |
7.1 Delivered Materials | 19 |
7.2 Identification of Possible Follow-on Work | 19 |
7.3 Identification of Potential Conflicts of Interest (COI) | 19 |
7.4 Identification of Non-Disclosure Requirements | 20 |
7.5 Packaging, Packing and Shipping Instructions | 20 |
7.6 Inspection and Acceptance Criteria | 20 |
8.0 SECTION 508 ACCESSIBILITY STANDARDS | 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 3 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
ENHANCED MOBILE SATELLITE SERVICES AIRTIME
STATEMENT OF WORK
1.0 Overview
This Statement of Work (SOW) defines requirements for Enhanced Mobile Satellite Services (EMSS) acquisition to serve the Department of Defense (DOD) and other United States Government (USG) users throughout the world by leveraging the commercial Iridium Satellite LLC, hereinafter “Iridium” satellite constellation. Specifically, this SOW provides the DISA-Sponsored subscribers with EMSS airtime service utilizing the Iridium constellation.
1.1 Background
The DOD/USG has validated requirements for voice and data communications to support missions in polar regions, special operations, Very Important Person (VIP) communications, search and rescue operations, disaster relief efforts and other Command, Control, Communications and Intelligence (C3I) efforts worldwide. These communications may be located within line of sight, over the horizon, at a distant theater location, or at a distant CONUS or OCONUS location. To support many of these missions, these communications will require end-to-end security interoperability with the existing embedded base of Type I Secure equipment. The communications network required to support these locations must provide global coverage from 90 degrees North to 90 degrees South. To allow user mobility, the secure handset must be small and light weight. EMSS provides a means to accommodate many, if not all, of the war fighter and other mission requirements.
1.2 Contract Scope
This contract provides DOD/USG with a global satellite communication services for handset, pager, Subscriber Identification Module (SIM)-based and SIM-less short burst data (SBD), Distributed Tactical Communications System (DTCS) push-to-talk (PTT) or like services and other potential mobile/stationary configurations. Future services and/or capabilities may be developed for the Iridium / EMSS gateway and may be incorporated into this contract. This contract provides for unlimited airtime services, or some other variation thereof as further defined in the contract. The Contractor shall provide access service to individual Government subscribers who may possess pagers, handsets, SBD-enabled devices, or other devices and equipment.
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 4 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
Manufacturing, ordering and provisioning of handsets, secure sleeves, pagers and other communication devices and accessories will be accomplished under a separate contract. In addition, the day-to-day operation and maintenance (O&M) of the Government Gateway used to support Iridium services for the DOD/USG and to provide connectivity to the global Defense Information System Network (DISN) will be accomplished under a separate contract.
The Contractor shall ensure the Government is allowed complete access to the global Iridium system and services utilizing full Government unique functionality.
The Contractor shall cooperate and coordinate with other EMSS contractors on the Gateway operation on user account information, provisioning, troubleshooting and any other information essential to EMSS.
1.2.1 Definitions
Subscriber
A government Iridium service subscriber is an individual who uses a voice or data device or pager. Each telephone device that uses a SIM card, each L-Band Transceiver (LBT), each stand alone pager, and each SIM-less SBD device registered and activated for service to the DOD Gateway will be counted as a separate subscriber. Pagers registered and activated for use in a follow-me pager mode in conjunction with a handset will not be counted as a separate subscriber.
Follow-Me Paging
Follow-me paging means that the pager works in conjunction with an Iridium handset to maintain the user’s location, and therefore, eliminates the need to update message delivery areas.
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 5 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
Stand-Alone Paging
Stand-alone paging is independent of voice service, and applies where a subscriber can specify up to three delivery areas where the pager will receive messages.
SIM
Subscriber Identification Module (SIM) is a smart card roughly the size of a postage stamp that securely stores the key identifying a mobile phone service subscriber, as well as, subscription information, saved telephone numbers, preferences, text messages and other information.
Short Burst Data
Short Burst Data (SBD) is a data service that enables wireless data applications to cost-effectively send and receive short data transactions efficiently over the Iridium network using either the 9522 LBT or 9600 series Talladega SBD modem or future SBD modems
Multicast
Multicast (commonly referred to as DTCS) provides the sender the ability to transmit a single voice and/or data message to a select group of recipients on the network. Multicast networks will not be counted as a subscriber.
Global Multicast
This capability may be incorporated into other handsets or devices that utilize the Iridium network. Multicast networks will not be counted as a subscriber.
Global Data Broadcast
Global Data Broadcast (GDB) is a satellite-based wireless broadcast service. The GDB service allows data providers to reach an unlimited number of subscribers quickly and efficiently. Any type of digital data can be delivered to discrete locations, single and/or multiple non-contiguous regions, or globally. Users can be part of one or more broadcast groups and receive multiple subscriber services simultaneously
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 6 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
OpenPort
OpenPort currently offers 3 phone circuits and one data circuit (up to 128 kbs) on a single platform.
L-Band Transceiver
The L-Band Transceiver (LBT) transmits and receives data messages across the Iridium satellite network utilizing inter-satellite links to reach the Iridium gateway where it communicates with the host system via an e-mail interface.
Help Services
Resolution of trouble assistance calls pertaining to the Iridium services. The Contractor shall provide a centralized point of contact for reporting service troubles on a 24/7 basis. Reporting shall be done by telephone, email, or fax.
2.0 EMSS CONTRACT REQUIREMENTS
The Contractor shall furnish the necessary personnel, materials, facilities, and services to provide Iridium services throughout the world in accordance with (IAW) this SOW. The Contractor shall furnish all commercial components, software and services delivered under this contract according to the commercial standards applicable to such items.
References to "the Government" in this SOW shall be interpreted to mean an authorized Government representative as designated by the EMSS Contracting Officer.
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 7 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
2.1 EMSS PROGRAM MANAGEMENT
The Contractor shall monitor, evaluate, and report on the EMSS program activities and technical status to the Government. The Contractor shall develop a monthly status report that identifies significant activities, network problems, and network performance reports to include identification of service interruptions or downtimes during the reporting period.
2.1.2 Progress Reporting
The Contractor shall report the EMSS program activities and technical status to the Contracting Officer and Contracting Officer Representative (COR) and any office as directed by the COR no later than the 5th of each month. At a minimum, the monthly report will include items stated in paragraph 2.1 above.
The Contractor shall provide the Government with the status of the health and performance of the Iridium constellation on a quarterly basis.
Deliverable:
Monthly Progress Report
Quarterly Health and Performance Report
2.1.3 Semi-Annual Planning and Design Review
The Contractor shall participate in semi-annual reviews conducted at the Contractor’s facility or as directed by the Government. The Contractor shall address the status of available EMSS services and the Contractor shall assess the potential for changes that can reduce costs, improve end-user services, or enhance administrative and management systems. The Contractor shall prepare and present analyses and data in briefing format to support the Planning and Design Review to include, but may not be limited to such topics as:
· | Current network design and engineering data |
· | Growth analyses and resources allocations |
· | Trend analyses and projections |
· | Advanced planning data and contingency plans |
· | Security of the EMSS services, Government User Terminals and Gateway |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 8 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
· | Analyses of changes in technology that may be inserted into the underlying network that provides EMSS services |
· | Status of Host Nation Agreements and Commercial Franchise Rights |
The Contractor shall also recommend potential EMSS service improvements that can be initiated and/or implemented in the coming year. The first semi-annual review shall be conducted six months after contract award. The Contractor and Government shall jointly prepare an agenda for each review meeting. The Contractor shall prepare and submit semi-annual planning review minutes and presentations for review and approval by the Government. |
Deliverable: |
Semi-Annual Planning and Design Review |
2.2 Configuration Management Controls
The Contractor shall provide configuration management and control of all Iridium constellation network software/firmware required to interface to and to maintain operation of the constellation under the terms of this contract for the entire contract performance period. The Contractor shall also notify the Government of any hardware or software changes or upgrades needed to maintain an interface to the network. |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 9 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
2.3 EMSS SERVICES
2.3.1 EMSS Connection Services
The services include, but are not limited to, the following:
· | Global access to the EMSS system with operating parameters of commercial system operation |
· | End-to-end voice communications, including Type 1 voice encryption |
· | End-to-end data/facsimile services |
· | Messaging services to include Paging |
· | Supplemental Services |
· | Future Services (upon availability) |
· | Supplemental services include, but are not limited to: |
· | Call forwarding |
· | Call hold |
· | Call waiting |
· | Blocking of all incoming calls, Closed user groups |
· | Multi-party service (call conferencing), SBD and RUDICS. |
· | Global Positioning Service (GPS) |
· | Multicast |
· | OpenPort |
· | Global Broadcast Data |
· | Optional Supplemental Services include, but are not limited to: |
· | K-Band |
[***] will not be levied against the government or its authorized service provisionary.
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 10 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
2.3.2 Priority of Service
In any geographical area/region or at any time when satellite bandwidth may be limited, Government Gateway subscribers who have been provisioned with priority SIM cards as provided in the contract will have Priority over all other users.
2.3.3 Service Availability
Service Availability is defined as the ability of an EMSS customer to be able to obtain and maintain service connectivity for any service under this contract. The acceptable overall service availability is [***] as further defined below. Outages outside the control of the Contractor will not count against service availability.
Service availability is measured by the following factors:
1. Gateway Connectivity
2. Voice Connectivity
3. Data Connectivity
Gateway Connectivity
The Contractor shall provide service advisories to the Government in a timely manner on the status of the constellation, service-affecting outages, scheduled outages, constellation service gaps and predictions of constellation service. The Contractor shall maintain these records on-line for 90 calendar days and archive off-line for an additional 2 years.
The Contractor shall also provide the EMSS Gateway Operators with advisories of significant service-affecting events and problems relating to all service including the ground segment via telephone or electronically within 24 hours of occurrence.
Voice Connectivity
The Contractor shall ensure a satellite phone voice availability rate of a minimum of [***] as measured by [***]. This rate excludes any outage that may be caused by the DOD gateway as provided in the contract. The contractor shall ensure the Iridium services are supported with a [***] of a minimum of [***] and a [***] of no greater than [***] based on a [***] with the exception of the final year of the contract whereupon these metrics change to [***] and [***], respectively.
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 11 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
Data Connectivity
The Contactor shall ensure that data is transmitted via the constellation to and from the gateway and end user device in an efficient manner.
2.3.4 Quality of Service
The Contractor shall provide voice/data traffic that is intelligible and usable. Quality of service performance is to include voice recognition, bit error rates, and call set-up times shall be in accordance with the Contractor’s standard commercial practices for the network.
2.3.4.1 [***]
The following table defines the [***] for each contract year.
[***] | [***] | |
Year 1 | [***] | [***] |
Year 2 | [***] | [***] |
Year 3 | [***] | [***] |
Year 4 | [***] | [***] |
Year 5 | [***] | [***] |
The [***] will be established by utilizing [***]. The [***] at the [***] will be configured to [***]. The [***] and [***] will be a [***].
Deliverable:
Monthly [***] Report
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 12 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
2.3.5 Outage Reporting
2.3.5.1 Unscheduled Outages
The Contractor shall notify the Government of any unscheduled outage within 30 minutes or less of the Contractor’s confirmation of the outage while the outage persists, the Contractor shall provide data to the Government by either fax or email on a daily basis. This includes the status of the constellation, service-affecting outages, and constellation service gaps (blackouts). If applicable, reporting shall include predictions of constellation service gaps for the next 30 days. This information shall be reported from the Iridium Satellite Network Operations Center (SNOC) to the DOD Gateway. The Contractor shall maintain these records for 2 years and upon request, deliver these records to the Government.
2.3.5.2 Scheduled Outages
The Contractor shall provide the DOD Gateway Operators with advisories of scheduled outages and events that may potentially negatively impact US Government Iridium services. These advisories shall be provided via telephone, fax or email no later than 30 days before the scheduled outage. For scheduled outages occurring within the 30 day window, the Contractor will notify the Government as quickly as possible.
2.3.6 Host Nation and Franchise Operation Rights
The Contractor shall conduct negotiations and attain approvals for Host Nation/Landing Rights and commercial franchise operations rights, to provide the Government with complete EMSS system access and service operation on a global basis from 90 degrees North to 90 degrees South. This access includes full utilization of all unique Gateway services and features. The Contractor shall provide status to the Government on progress in obtaining Host Nation/Landing Rights and commercial franchise operations rights as part of the Semi-Annual Planning and Design Reviews.
2.4 Emergency Management
The Contractor shall attempt to maintain service and network management operations under emergency and damage conditions and shall provide the capability to expand EMSS services to meet these conditions, subject to the commercial system limitations. The Contractor shall notify the Contracting Officer or the Contracting Officer Representative immediately whenever, an emergency or damage situation arises. To the extent that the commercial EMSS system complies with the procedures, guidance, and regulations in Reference 3, FCC Memorandum and Order No. 88-341, the Contractor shall ensure that the Gateway also complies, subject to any limitations that may result from a DISN-only interconnection. The Contractor shall facilitate the rapid expansion of the Government EMSS services in an emergency situation, subject to the limitations imposed by the commercial EMSS system. The Contractor shall cooperate and coordinate with the Government in responding to emergencies on 24 hours per day, 7 days per week basis.
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 13 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
2.5 Security Incident Reporting
The Contractor shall provide reports on security management that include, but are not limited to, daily and monthly summaries of attempted system break-ins that affect (or could affect) the operation and management of Government EMSS services. Security incident reporting will provide the capability to log all security-related events (to include the detection of attempted system break-ins), which affect (or could affect) the operation and management of backbone transmission services and could therefore affect services provided to the DISN customers through this contract. At a minimum, the Government should receive a monthly Security Incident Report and this report should be provided to the Contracting Officer and to the COR. Critical instrusion attempts may warrant more frequent reports.
Deliverable:
Security Incident Report
2.6 Implementation of Planned EMSS System Enhancements
The Contractor shall, to the maximum extent practical, consider enhancements in its overall EMSS architecture and design for the Government Gateway. The ability of the Contractor to exercise any of these enhancements will be dependent upon commercial system approvals for such enhancements and modifications to the commercial EMSS system. The Contractor shall notify the Government when such upgrades, software patches, point releases, major releases and enhancements become commercially available and/or allowed to be implemented in the Government Gateway. The Government will request that the Contractor submit a separate proposal for implementation of these enhancements. The Government reserves the right to exercise any, not one, or all of these enhancements in the future. These enhancements may include, but shall not be limited to, the following:
· | Billing System Modifications |
· | User Information/Access Control Capability |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 14 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
· | Gateway Network Management Functions |
· | Signaling Encryption Capability |
· | Subscriber Location Query |
· | Short Burst Messaging |
· | Host Nation Approvals |
· | Defense Messaging System Interface |
· | High Data Rate Transmission (Ka Band Feeder Link) |
· | Clear and Type I Encrypted Push-to-Talk Netted Service |
· | Encrypted End-to-End Data/Facsimile/Messaging Services |
3.0 Place Of Performance
The places of performance for this contract will be at the Contractor’s facilities in Leesburg, Virginia and Tempe and Chandler, Arizona and/or the DOD Gateway Facilities in Wahiawa, Hawaii.
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 15 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
4.0 Period Of Performance
The Period of Performance is from 22 October 2013 to 21 October 2018.
5.0 Deliverables
The following table represents the required deliverables under this contract. The contractor-determined format must be approved by the COR. This list may be updated as new deliverables are added or modified:
SOW Task# |
Deliverable Title | Format | Number | Calendar Days | ||||
2.1.2 | Health & performance | Contractor-Determined Format | Standard Distribution * | Quarterly | ||||
2.1.2 | Progress, Status, Usage & Management Report | Contractor-Determined Format | Standard Distribution* | Monthly (5th of each month) | ||||
2.1.3 | Semi-Annual Planning & Design Review | Contractor-Determined Format | Standard Distribution* | Semi-Annual | ||||
2.3.4.1 | [***] Report | Contractor-Determined Format | Standard Distribution* | Monthly (10th of each month) | ||||
2.5 | Security Management Report | Contractor-Determined Format | Standard Distribution* | Monthly |
* Standard Distribution: 1 copy of the Deliverable to
Clare Grason Clare.a.Grason.civ@mail.mil
Marilena May Marilena.j.May.civ@mail.mil
Brendan Molloy Brendan.J.Molloy.civ@mail.mil
Jennifer Singley Jennifer.m.Singley2.civ@mail.mil
Michael Nicholas Michael.A.Nichols16.civ@mail.mil
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 16 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
6.0 Security Requirements
Contractor personnel will be escorted when rights of entry and exit from the Government facilities are required for performance of work under this contract. Contractor employees shall comply with all applicable directives and policies regarding conduct of personnel and operation of the facility. Contractor personnel will be required to "sign in" upon entry to and "sign out" upon exit from any Government facility.
a) A clearance is not required for this contract. Contractor personnel will be escorted at all times when access to the facility is required.
b) The contractor may be required to access Sensitive but Unclassified and For Official Use Only information and data in order to perform the work necessary on this contract.
c) The contractor does not require access to any CLASSIFIED data, documents, maps, planning documents and other information resources and data in order to perform under the specifications of the contract.
6.1 Facility Security Clearance
NONE.
6.2 Security Clearance and Information Technology (IT) Level
Not Applicable.
6.3 Investigation Requirements
Not Applicable.
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 17 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
6.4 Visit Authorization Letters
All Contractors shall be escorted while on site. Prior to the start of the project, the contractor shall submit a visit request for all personnel. No cell phones, two way pagers, memory sticks or other recordable media will be allowed in the building where work will be performed. Contractor laptops and other tools used to conduct the installation may be allowed after a thorough security check by EMSS Security Officer.
The Contractor shall be responsible with providing all employee information to the EMSS Security Officer in order to complete a visitor request. The visit request must be on a company/agency letterhead and sent to EMSS DoD Gateway Security Officer by fax at 808-653-4049 (visitors CANNOT carry it with them). Requests must be received by EMSS DoD Gateway Security Officer at least two weeks prior to visit.
6.5 Information Security and other miscellaneous requirements
Contractor personnel must comply with local security requirements for entry and exit control for personnel and property at the government facility. Contractor employees will be required to comply with all Government security regulations and requirements. Initial and periodic security training and briefings will be provided by Government security personnel. Failure to comply with security requirements can be cause for termination of employment.
The Contractor shall not divulge any information about DoD files, data processing activities or functions, user identifications, passwords, or any other knowledge that may be gained, to anyone who is not authorized to have access to such information. The Contractor shall observe and comply with the security provisions in effect at the DoD facility. Identification shall be worn and displayed as required.
6.6 COMSEC
Not Applicable.
6.7 Defense Courier Service (DCS)
Not Applicable.
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 18 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
6.8 GOVERNMENT-FURNISHED EQUIPMENT (GFE)/GOVERNMENT-FURNISHED INFORMATION (GFI)
NONE.
7.0 OTHER PERTINENT INFORMATION OR SPECIAL CONSIDERATIONS
7.1 Delivered Materials
All delivered materials shall become and remain the property of the U.S. Government under control of the EMSS PMO COR.
7.2 Identification of Possible Follow-on Work
NONE.
7.3 Identification of Potential Conflicts of Interest (COI)
FAR Part 9.501 defines “organizational COI” as a situation where because of other relationships or activities a person (company) is unable or potentially unable to render impartial assistance or advice to the Government or cannot objectively perform contract work or has an unfair competitive advantage. FAR 9.502 states that “an organization COI may result when factors create an actual or potential conflict of interest on an instant contract, or when the nature of the work to be performed on the instant contract creates an actual or potential COI on a future acquisition.” An “organizational COI” exists when the nature of the work to be performed may, without some restriction on future activities, (1) result in an unfair competitive advantage to the contractor on other contracts or (2) impair the contractor’s objectivity in performing the contract work. The primary burden is on the contractor to identify any organizational COI, however, the Government has the responsibility to identify and evaluate such conflicts. The KO is charged with avoiding, neutralizing or mitigating such potential conflicts. The customer must make a determination that no COI exist, or identify any potential COI that may exist for the execution of this contract/TO.
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 19 of 20 |
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
7.4 Identification of Non-Disclosure Requirements
NONE.
7.5 Packaging, Packing and Shipping Instructions
FAR clauses related to this article may be incorporated into the contract.
7.6 Inspection and Acceptance Criteria
The Government will inspect and accept all deliverables under this contract.
8.0 SECTION 508 ACCESSIBILITY STANDARDS
The following Section 508 Accessibility Standard(s) (Technical Standards and Functional Performance Criteria) are applicable (if box is checked) to this acquisition.
Technical Standards
¨ 1194.21 - Software Applications and Operating Systems
¨ 1194.22 - Web Based Intranet and Internet Information and Applications
¨ 1194.23 - Telecommunications Products
¨ 1194.24 - Video and Multimedia Products
¨ 1194.25 - Self-Contained, Closed Products
¨ 1194.26 - Desktop and Portable Computers
¨ 1194.41 - Information, Documentation and Support
The Technical Standards above facilitate the assurance that the maximum technical standards are provided to the contractor. Functional Performance Criteria is the minimally acceptable standards to ensure Section 508 compliance. This block is checked to ensure that the minimally acceptable electronic and information technology (E&IT) products are proposed.
Functional Performance Criteria
¨ 1194.31 - Functional Performance Criteria
FOR OFFICAL USE ONLY
SOURCE SELECTION INFORMATION – SEE FAR 2.101 AND 3.104
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 20 of 20 |
By:
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/s/ Matthew J. Desch
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Matthew J. Desch
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Chief Executive Officer
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/s/ John Roddy
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December 9, 2013
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John Roddy
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Agreed:
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Signature
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Date
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IRIDIUM COMMUNICATIONS, INC.
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By:
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/s/ Matthew J. Desch
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Name: Matthew J. Desch
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Title: CEO
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EXECUTIVE
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/s/ Bryan Hartin
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Bryan Hartin
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IRIDIUM COMMUNICATIONS INC.
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By:
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Its:
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EXECUTIVE
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Bryan Hartin
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3. | ||
1. | ||
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15. | ||
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IRIDIUM COMMUNICATIONS INC.
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By:
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/s/ Matthew J. Desch
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Name: Matthew J. Desch
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Title: Chief Executive Officer
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EXECUTIVE
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/s/ Thomas D. Hickey
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Thomas D. Hickey
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16. | ||
1. | ||
2. | ||
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IRIDIUM COMMUNICATIONS INC.
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By:
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Its:
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EXECUTIVE
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Thomas D. Hickey
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3. | ||
Subsidiary
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Jurisdiction of Organization
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Aireon LLC
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Delaware
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Iridium Blocker-B Inc.
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Delaware
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Syncom-Iridium Holdings Corp.
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Delaware
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Iridium Holdings LLC
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Delaware
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Iridium Satellite LLC
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Delaware
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Iridium Constellation LLC
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Delaware
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Iridium Carrier Holdings LLC
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Delaware
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Iridium Carrier Services LLC
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Delaware
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Iridium Government Services LLC
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Delaware
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OOO Iridium Services
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Russia
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OOO Iridium Communications
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Russia
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1. | I have reviewed this annual report on Form 10-K of Iridium Communications Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions): |
a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Date: March 4, 2014
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/s/ Matthew J. Desch
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Matthew J. Desch
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Chief Executive Officer
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(principal executive officer)
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1. | I have reviewed this annual report on Form 10-K of Iridium Communications Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions): |
a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Date: March 4, 2014
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/s/ Thomas J. Fitzpatrick
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Thomas J. Fitzpatrick
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Chief Financial Officer and Chief Administrative Officer
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(principal financial officer)
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1. | The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013, to which this Certification is attached as Exhibit 32.1 (the “Form 10-K”), fully complies with the requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended; and |
2. | The information contained in the Form 10-K fairly presents, in all material respects, the financial condition of the Company at the end of the period covered by the Form 10-K and results of operations of the Company for the periods covered in the financial statements in the Form 10-K. |
/s/ Matthew J. Desch
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/s/ Thomas J. Fitzpatrick
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Matthew J. Desch
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Thomas J. Fitzpatrick
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Chief Executive Officer
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Chief Financial Officer and Chief Administrative Officer
|
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