Exhibit 2.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this “Agreement”), dated as of December 10 , 2014, is made by and among Great West Resources, Inc. (“Parent”), Orbital Satcom Corp., a Nevada Corporation (“Buyer”) and wholly-owned subsidiary of Parent, World Surveillance Group Inc., a Delaware corporation (“World”), and Global Telesat Corp., a Virginia corporation (“Seller”) and wholly-owned subsidiary of World.
WHEREAS, Seller has entered into certain agreements and contracts with Globalstar, Inc. and Globalstar LLC (collectively, “Globalstar”) set forth on Schedule I hereto (each, a “Globalstar Contract” and collectively, the “Globalstar Contracts”); and
WHEREAS, the Seller is entitled to, among other things, the use of Globalstar’s Simplex Data Service (as defined herein) pursuant to the terms and conditions set forth in the Globalstar Contracts.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1.
Definitions
.
As used in this Agreement, the following terms have the meanings set forth below:
“
Affiliate
”
of any Person or entity means any other Person or entity directly or indirectly controlling, controlled by or under direct or indirect common control with such Person or entity
.
For purposes of this definition, “control” means the power to direct the management and policies of such Person or firm, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
“
Anti-Corruption Laws
” means all Governmental Rules applicable to Seller or World from time to time concerning or relating to bribery or corruption, including the Foreign Corrupt Practices Act.
“
Applique
” means a gateway receiver with associated hardware and software based on a software defined radio receiver standard, which receives and decodes remote sensing data received via satellite from field transmitters and transmits these RF signal messages and SENS message packets through the internet.
“
Business Day
” means any day other than a Saturday, Sunday or other day on which banks in the U.S. are permitted or required to close by law or regulation.
“
Buyer Officer’s Certificate
” means a certificate, dated as of the Closing Date, duly executed by an authorized officer of Buyer, reasonably satisfactory in form to Seller and World.
“
Closing
” and “
Closing Date
” have the meaning set forth in Section 4.1.
“
Confidential Information
” consists of all information, knowledge or data related solely to the Purchased Assets or the Globalstar Contracts not in the public domain or otherwise publicly available which are treated as confidential by Seller as of the date hereof, provided, that Confidential Information shall not include information that: (i) enters the public domain or is or becomes publicly available, so long as neither the disclosing party nor any of its Affiliates, directly or indirectly, improperly causes such information to enter the public domain, (ii) becomes known to the disclosing party or any of its Affiliates on a non-confidential basis from a source that is not prohibited from disclosing such information to the disclosing party or such Affiliate by a contractual or other legal duty, (iii) is developed independently by the disclosing party or any Affiliate of the disclosing party without violation of this Agreement.
“
Encumbrance
” means, with respect to any asset, any imperfection of title, mortgage, charge, lien, security interest, easement, right of way, pledge or encumbrance of any nature whatsoever.
“
Globalstar Consents
” means the written consent of Globalstar to (i) the transactions contemplated hereby, including the assignment of its rights, obligations and benefits under the Globalstar Contracts, and (ii) to the transactions contemplated by the License Agreement.
“
Globalstar System
” refers to the low earth orbit satellite constellation and related earth-based centers owned and operated by Globalstar.
“
Governmental Entity
” means any court, administrative agency or commission or other governmental authority, body or instrumentality, whether U.S. or non-U.S.
“
Governmental Rule
” means any law, judgment, order, decree, statute, ordinance, rule or regulation enacted, issued or promulgated by any Governmental Entity.
“
Knowledge
” of Seller, World, Parent or Buyer, as the case may be, means all such facts, circumstances or other information, of which such Person is actually aware or in the exercise of commercially reasonable care and diligence, would reasonably have been discovered.
“
Liabilities
” means any and all debts, liabilities and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, or known or unknown, including those arising under any Governmental Rule or action and those arising under any Contract, arrangement, commitment or undertaking, or otherwise.
“
License Agreement
” means that certain License Agreement by and among the Parent, Buyer, World and Seller, dated as of the date hereof and executed in connection herewith.
“
OFAC
” means The Office of Foreign Assets Control of the United States Department of the Treasury.
“
Parent’s
Officer’s Certificate
” means a certificate, dated as of the Closing Date, duly executed by an authorized officer of Parent, reasonably satisfactory in form to Seller and World.
“
Permitted Encumbrances
” means any minor imperfections of title or similar Encumbrance that do not, and would not reasonably be expected to, individually or in the aggregate, materially impair the value or materially interfere with the use of, the Purchased Assets (as such term is defined in Section 2.1).
“
Person
” means any individual, corporation, partnership, limited liability company, joint venture, trust, business association, organization, Governmental Entity or other entity.
“
Sanctioned Entity
” means (a) a country or government of a country; (b) an agency of the government of a country; (c) an organization directly or indirectly controlled by a country or its government; or (d) a Person resident in or determined to be a resident in a country, in each case, that is subject to a country sanctions program administered and enforced by OFAC.
“
Sanctioned Person
” means a person named on the list of Specially Designated Nationals maintained by OFAC.
“
Seller Officer’s Certificate
” means a certificate, dated as of the Closing Date, duly executed by an authorized officer of Seller, reasonably satisfactory in form to Buyer.
“
Simplex Data Service
” means the one-way transmission of low rate data from modem devices utilizing corresponding Applique equipment authorized for use on the Globalstar System.
“
Tax(es)
” means all federal, state, local and foreign taxes, customs, duties, governmental fees and assessments, including all interest, penalties and additions with respect thereto.
“
Tax Return
” means any report, return, election, notice, estimate, declaration, information statement and other forms and documents (including all schedules, exhibits and other attachments thereto) relating to and filed or required to be filed with a taxing authority in connection with any Taxes (including estimated Taxes).
“
World Officer’s Certificate
” means a certificate, dated as of the Closing Date, duly executed by an authorized officer of World, reasonably satisfactory in form to Buyer.
ARTICLE II.
SALE AND PURCHASE OF PURCHASED ASSETS
SECTION 2.1.
Purchase and Sale
.
Upon the terms and subject to the conditions of this Agreement, as of the date first set forth above or such later date as all of the conditions to closing will have been satisfied by the parties (the “
Closing Date
”), in consideration for the Purchase Price (as defined in Section 3.1) Seller will sell, assign, transfer, convey and deliver to Buyer, and Buyer will purchase, acquire and accept, the assets listed on
Schedule 2.1
hereto (collectively, the “
Purchased Assets
”).
SECTION 2.2
Excluded Assets
.
Notwithstanding the foregoing, the Purchased Assets shall not include the following assets (collectively, the “
Excluded Assets
”):
(a) any assets of Seller not specifically listed as a Purchased Asset; and
(b) the assets listed on
Schedule 2.2
hereto.
SECTION 2.3
Assumption of Liabilities and Obligations
.
Buyer will assume all Liabilities of Seller under the Globalstar Contracts, all Liabilities related to contracts, purchase orders or other agreements with customers who are serviced pursuant to the Globalstar Contracts as listed on Schedule 2.1, and all Liabilities related to the Globalstar Cody Simplex activation system (the “
Assumed Liabilities
”), except for Excluded Liabilities.
SECTION 2.4.
Excluded Liabilities
.
Excluded Liabilities shall include, without limitation, the following:
(a)
liabilities arising from the use, deployment, purchase, license, operation or maintenance of Appliques under the Globalstar Contracts (presently existing or in the future incurred);
(b)
liabilities arising from Seller’s breaches, defaults or failures of performance under the Globalstar Contracts, prior to the Closing Date;
(c)
any liabilities for Taxes incurred or accrued by Seller arising from or with respect to (i) the operation of Seller’s business, (ii) the Purchased Assets or Assumed Liabilities which were incurred in, accrued through or attributable to any period prior to the Closing Date, and (iii) any Taxes as a result of this transaction, including payroll, sales and income;
(d)
any litigation or disputes pending or threatened against Seller or Parent or its owners or management; and any warranty liability to customers arising out of events occurring on or before the Closing Date, except as such warranty liability relates to the Purchased Assets or the Assumed Liabilities;
(e)
debt obligations and accrued interest thereon of the Seller; or
(f)
any liabilities not related to the Purchased Assets or Assumed Liabilities and liabilities related to the Purchased Assets or Assumed Liabilities incurred prior to the Closing, unless otherwise stated herein.
SECTION 2.5.
Transfer Taxes
.
All transfer, sales, value added, stamp duty and similar Taxes payable in connection with the transactions contemplated hereby will be paid by Seller.
ARTICLE III.
PURCHASE PRICE
SECTION 3.1.
Purchase Price
.
In exchange for the Purchased Assets, Buyer shall (i) pay Seller the sum of $250,000 (USD) in immediately available funds wired to the Seller on the date of Closing and (ii) assume the Assumed Liabilities (collectively, the “
Purchase Price
”).
ARTICLE IV.
THE CLOSING
SECTION 4.1.
Closing Date
.
The closing of the sale and transfer of the Purchased Assets and the assumption of the Assumed Liabilities (the “
Closing
”) will take place at the offices of Seller, or at another place designated by the parties, following the date on which all of the relevant conditions to each party’s obligations under this Agreement have been satisfied or waived, on or prior to December 10, 2014 (the “
Closing Date
”).
SECTION 4.2.
Transactions to Be Effected at Closing
.
(a) Seller and World will deliver or cause to be delivered to Buyer each of the following items:
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(i)
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the License Agreement, appropriately executed by Seller and World;
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(ii)
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all items and documentation required to effectuate the transfer of the Purchased Assets from Seller to Buyer on the Closing Date;
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(iii)
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Seller Officer’s Certificate dated as of the Closing Date;
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(iii)
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World’s Officer’s Certificate dated as of the Closing Date; and
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(iv)
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any other documents reasonably requested in writing by Buyer in connection with the Purchased Assets.
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(b) Buyer and Parent will deliver or cause to be delivered to Seller each of the following items:
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(i)
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the License Agreement, appropriately executed by Buyer and Parent;
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(ii)
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the Purchase Price;
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(iii)
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Buyer’s Officer’s Certificate dated as of the Closing Date;
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(iv)
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Parent’s Officer’s Certificate dated as of the Closing Date; and
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(v)
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any other documents reasonably requested in writing by Seller in connection with the Purchased Assets.
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF SELLER AND WORLD
Seller and World, jointly and severally, hereby represent and warrant to Buyer that the statements contained in this Article V are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Article V), except as set forth in any disclosure schedule accompanying this Agreement which shall qualify any representations and warranties set forth herein.
SECTION 5.1.
Seller Organization; Good Standing
.
Seller is a corporation duly organized, validly existing and in good standing under the laws of Virginia. Seller has the requisite power and authority to own the Purchased Assets and to carry on its business as currently conducted.
SECTION 5.2.
Authority; Execution and Delivery
.
Seller and World have the requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Seller and World and the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement has been duly executed and delivered by Seller and World and, assuming the due authorization, execution and delivery of this Agreement by Buyer and Parent, will constitute the legal, valid and binding obligation of Seller and World, enforceable against them in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect, as the indemnification provisions contained herein may be limited by the principles of public policy, and to general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law.
SECTION 5.3.
Consents; No Violation, etc.
Except as set forth in the Disclosure Schedule, the execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby and the compliance with the terms hereof will not (i) violate any Governmental Rule applicable to Seller or World, (ii) conflict with any provision of the certificate of incorporation or by-laws (or similar organizational document) of Seller or World, (iii) conflict with any contract to which Seller or World is a party or by which it is otherwise bound, including, but not limited to, the Globalstar Contracts or any agreement related thereto, or (iv) require any approval, authorization, consent, license, exemption, filing or registration with any court, arbitrator or Governmental Entity, other than the filing of a Form 8-K pursuant to the rules and regulations promulgated by the Securities and Exchange Commission, except, with respect to the foregoing clauses (i) and (iii), for such violations or conflicts which would not have a material adverse effect on the Purchased Assets or materially interfere with Seller’s or World’s performance of its obligations hereunder (a “
Material Adverse Effect
”) or, with respect to the foregoing clause (iv), for such approvals, authorizations, consents, licenses, exemptions, filings or registrations which have been obtained or made or which, if not obtained or made, would not have a Material Adverse Effect.
SECTION 5.4.
Title to Purchased Assets
.
Seller has good and valid title to all of the Purchased Assets free and clear of all Encumbrances, other than Permitted Encumbrances. Seller has full right and power to (and at the Closing will) sell, convey, assign, transfer and deliver to Seller good and valid title to all the Purchased Assets, free and clear of any and all Encumbrances, other than Permitted Encumbrances. Seller is not a party to any contract with any third party to sell, transfer, assign, convey or otherwise dispose of any portion of the Purchased Assets or any of Seller’s interest in the Purchased Assets.
SECTION 5.5.
Litigation
.
There is no suit, claim, action, investigation or proceeding pending or, to the Knowledge of Seller or World, threatened against Seller or World, that relates to the Purchased Assets. During the twelve month period ending on the date hereof, (i) neither Seller nor World has received any written notice from any other Person challenging its ownership or rights to use any of the Purchased Assets and (ii) there has not been any, and there are no, product liability suits, claims, actions, investigations or proceedings pending or, to the Knowledge of Seller or World, threatened against Seller or World, relating to the Purchased Assets.
SECTION 5.6.
Globalstar Contracts
.
The Globalstar Contracts are binding, valid and enforceable on the Seller in accordance with their terms and are enforceable against the other party or parties thereto in accordance with their terms: (i) except as limited by applicable bankruptcy, insolvency, moratorium, reorganization, fraudulent transfer or other laws affecting creditors' rights and remedies generally, (ii) except as the indemnification provisions contained in this Agreement may be limited by principles of public policy, and (iii) except as limited by rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equity. Seller is not in default under any Globalstar Contract and there has not occurred any event which, with the giving of notice or lapse of time or both, would constitute a material default under any Globalstar Contract. Each of the Globalstar Contracts is in full force and effect and
Seller has not received any notice of default, cancellation, or termination in connection with any
Globalstar Contract
.
Except as set forth on the Disclosure Schedule
,
neither the execution and delivery of this Agreement by the Seller, nor the consummation by the Seller of the transactions contemplated hereby, including the assignment of its rights, obligations and benefits under the Globalstar Contracts, will require any consent, approval, or authorization by the other parties to the Globalstar Contracts or any other third party that has not been obtained by Seller prior to Closing.
SECTION 5.7.
Compliance with Applicable Laws
To their Knowledge and except as set forth on the Disclosure Schedule, Seller and World are in compliance with all applicable Governmental Rules, except for instances of noncompliance that, individually and in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect.
SECTION 5.8.
Anti-Corruption Laws and OFAC
.
To their Knowledge, Seller and World and their respective directors, officers, employees and agents are in compliance with Anti-Corruption Laws in all material respects. Seller is not in violation of any of the country or list-based economic and trade sanctions administered and enforced by OFAC. Seller (a) is not a Sanctioned Person or a Sanctioned Entity, (b) has no assets located in Sanctioned Entities; nor (c) derives any revenues from investments in, or transactions with, Sanctioned Persons or Sanctioned Entities. Seller will not use the funds received hereunder to fund any operation in, finance any investments or activities in, or make payments to, a Sanctioned Person or Sanctioned Entity or in violation of any Anti-Corruption Law.
SECTION 5.9
Licenses and Permits.
To their Knowledge, Seller and World have obtained and maintain all federal, state, local and foreign licenses, permits, consents, approvals, registrations, memberships, authorizations and qualifications required to be maintained in connection with the operations of the Seller as presently conducted. Seller is not in default under any of such licenses, permits, consents, approvals, registrations, memberships, authorizations and qualifications except for instances of default that, individually and in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect.
SECTION 5.10
Customers.
A full and complete list of all
customers serviced pursuant to the Globalstar Contracts at the Closing Date is set forth on
Schedule 2.1 hereto.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES OF BUYER AND PARENT
The Buyer and Parent, jointly and severally, hereby represent and warrant to Seller and World that the statements contained in this Article VI are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Article VI), except as set forth in the disclosure schedule accompanying this Agreement which shall qualify any representation and warranty set forth herein.
SECTION 6.1.
Organization; Good Standing
.
Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada. Buyer is duly qualified to conduct business as a foreign corporation and is in good standing in every jurisdiction where the nature of the business conducted by it makes such qualification necessary, except where the failure to so qualify or be in good standing would not prevent or materially delay the consummation of the transactions contemplated hereby.
SECTION 6.2.
Authority; Execution and Delivery
.
Buyer and Parent have the requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Buyer and Parent and the consummation of the transactions contemplated hereby have been duly and validly authorized. This Agreement has been duly executed and delivered by Buyer and Parent and, assuming the due authorization, execution and delivery of this Agreement by Seller and World, will constitute the legal, valid and binding obligation of Buyer and Parent, enforceable against Buyer and Parent in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect, as the indemnification provisions contained herein may be limited by the principles of public policy, and to general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law.
SECTION 6.3.
Consents; No Violations, etc.
The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby and the compliance with the terms hereof will not (i) violate any Governmental Rule applicable to Buyer or Parent, (ii) conflict with any provision of the certificate of incorporation or by-laws of Buyer or Parent, (iii) conflict with any contract to which either Buyer or Parent is a party or by which it is otherwise bound or (iv) require any approval, authorization, consent, license, exemption, filing or registration with any court, arbitrator or Governmental Entity, except with respect to the foregoing clauses (i) and (iii), for such violations or conflicts which would not materially interfere with Buyer’s or Parent’s performance of its obligations hereunder or, with respect to the foregoing clause (iv), for such approvals, authorizations, consents, licenses, exemptions, filings or registrations which have been obtained or made or which, if not obtained or made, would not materially interfere with Buyer’s or Parent’s performance of its obligations hereunder.
SECTION 6.4
Litigation
.
There is no suit, claim or action, pending or, to the Knowledge of Buyer or Parent, threatened against Buyer or Parent or any of their Affiliates which if adversely determined would materially interfere with the ability of either party to perform its obligations hereunder.
SECTION 6.5.
Compliance with Applicable Laws
Buyer and Parent are in compliance with all applicable Governmental Rules, except for instances of noncompliance that, individually and in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect.
ARTICLE VII.
CERTAIN COVENANTS AND AGREEMENTS OF SELLER AND WORLD
SECTION 7.1.
Post-Closing Orders and Payments
.
From and after 12:01 A.M. (Eastern Daylight Time) on the day immediately following the Closing Date, Seller will promptly deliver to Buyer any payments received by Seller from third parties related exclusively to the Purchased Assets on or after the Closing Date; provided, however, that for the sake of clarity, Seller shall be entitled to keep all payments received by Seller from third parties related to the Purchased Assets, and for work performed thereunder or related thereto, on or prior to the Closing Date, and refer all inquiries it will receive with respect to the Purchased Assets to Buyer.
SECTION 7.2.
Further Actions
.
Following the Closing Date, Seller and World will use commercially reasonable efforts (i) to take, or cause to be taken, all actions necessary, proper or advisable to satisfy the conditions to Closing in order to consummate and make effective the transactions contemplated by this Agreement, and (ii) to obtain the Globalstar Consents and any other consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained or made in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement. Furthermore, to the extent necessary following the Closing Date, Seller and World will use commercially reasonable efforts to take, or cause to be taken, all further actions necessary, proper or advisable in connection with the consummation of the transactions contemplated by this Agreement.
ARTICLE VIII.
CERTAIN COVENANTS AND AGREEMENTS OF BUYER
SECTION 8.1.
Fees Charged to Seller
.
Following the Closing Date and for a period of ten (10) years thereafter, Buyer shall charge Seller to transmit RF signal messages and SENS messages at a discount of 25% to the lowest fees charged by any Buyer Value Added Resellers or distributors for such services;
provided however
, that Buyer may change its prices upon 30 days written notice to Seller.
SECTION 8.2.
Further Actions
.
Following the Closing Date, Buyer and Parent will use commercially reasonable efforts (i) to take, or cause to be taken, all actions necessary, proper or advisable to satisfy the conditions to closing in order to consummate and make effective the transactions contemplated by this Agreement, and (ii) to obtain any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained or made in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement. Furthermore, to the extent necessary following the Closing Date, Buyer will use commercially reasonable efforts to take, or cause to be taken, all further actions necessary, proper or advisable in connection with the consummation of the transactions contemplated by this Agreement.
ARTICLE IX.
CONDITIONS
SECTION 9.1.
Conditions to Obligations of Buyer
.
The obligations of Buyer to purchase the Purchased Assets being sold, and assume the Assumed Liabilities being assumed, on the Closing Date are subject to the satisfaction on and as of the Closing Date of each of the following conditions:
(a)
Representations and Warranties
. The representations and warranties of Seller and World set forth in this Agreement will be true and correct in all material respects with respect to such Purchased Assets (other than representations and warranties that contain materiality qualifications, which shall be true and correct in all respects) as of the Closing Date as though made on and as of the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties will be true and correct in all material respects as of such earlier date).
(b)
Performance of Obligations of Seller and World
. Seller and World will have performed or complied in all material respects with all obligations, conditions and covenants required to be performed by them under this Agreement at or prior to the Closing Date.
(c)
No Litigation, Injunctions, or Restraints
. No temporary restraining order, preliminary or permanent injunction or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Agreement will be threatened or in effect.
(d)
Deliveries
. Seller and World will have duly executed and delivered to Buyer, dated as of the Closing Date, the documents referred to in Section 4.2(a).
SECTION 9.2.
Conditions to the Obligations of Seller
.
The obligations of Seller to sell, assign, convey, and deliver the Purchased Assets being sold on the Closing Date to Buyer are subject to the satisfaction on and as of the Closing Date of each of the following conditions:
(a)
Representations and Warranties
. The representations and warranties of Buyer and Parent set forth in this Agreement will be true and correct in all material respects (other than representations and warranties that contain materiality qualifications, which shall be true and correct in all respects) as of the Closing Date as though made on and as of the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties will be true and correct in all material respects as of such earlier date).
(b)
Performance of Obligations of Buyer and Parent
. Buyer and Parent will have performed or complied in all material respects with all obligations, conditions and covenants required to be performed by them under this Agreement at or prior to the Closing Date.
(c)
No Litigation, Injunctions, or Restraints
. No temporary restraining order, preliminary or permanent injunction or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Agreement will be threatened or in effect.
(d)
Deliveries
. Buyer and Parent will have duly executed and delivered to Seller and World, dated as of the Closing Date, in each case appropriately executed, as applicable, the documents referred to in Section 4.2(b).
ARTICLE X.
TERMINATION, AMENDMENT AND WAIVER
SECTION 10.1.
Termination
.
(a) Notwithstanding anything to the contrary in this Agreement, this Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing by mutual written consent of Seller, World, Parent and Buyer.
(b) In the event of termination of this Agreement pursuant to this Section 10.1, the transactions contemplated by this Agreement will be terminated, without further action by any party. If the transactions contemplated by this Agreement are terminated as provided herein:
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(i)
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Buyer will return all documents and other material received from Seller relating to the Purchased Assets, or the transactions contemplated hereby, whether so obtained before or after the execution hereof, to Seller and, if applicable, Seller shall return the Purchase Price to Buyer; and
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(ii)
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all Confidential Information received by Buyer with respect to Seller or the Purchased Assets or Assumed Liabilities, including all copies of, or documents and materials containing or including any Confidential Information, will be treated as confidential information hereunder by Buyer and Parent and will be returned to Seller and World or certified as destroyed.
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(c) If this Agreement is terminated, no party hereto and none of their respective directors, officers, shareholders, Affiliates or controlling Persons shall have any further liability or obligation under this Agreement, except that nothing herein will be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement occurring prior to such termination.
SECTION 10.2.
Amendments and Waivers
.
This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. By an instrument in writing, Buyer and Parent, on the one hand, or Seller and World, on the other hand, may waive compliance by the other party with any term or provision of this Agreement that such other party was or is obligated to comply with or perform.
ARTICLE XI.
SURVIVAL
All of the representations and warranties of Seller, World, Parent and Buyer contained herein or made pursuant hereto shall survive the Closing Date for a period of one year.
ARTICLE XII.
GENERAL PROVISIONS
SECTION 12.1.
Expenses
.
Except as otherwise specified in this Agreement, all costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby will be paid by the party incurring such costs and expenses.
SECTION 12.2.
Confidentiality and Publicity
.
Each party hereto will not, and will use reasonable commercial efforts to cause its respective Affiliates not to, use for its or their own benefit or divulge or convey to any third party, any Confidential Information relating to the Purchased Assets. Notwithstanding the foregoing, neither party shall be deemed to have violated this Section 12.2 if it or any of its Affiliates discloses Confidential Information (a) as required by applicable law, regulation, regulatory or legal process, (b) to the extent reasonably required in connection with the exercise of any remedy hereunder or (c) to comply with accounting standards and applicable securities and other laws and regulations including disclosures made in order to comply with the regulations of the Securities and Exchange Commission or with the regulations of any applicable securities exchange or trading platform.
SECTION 12.3.
Further Assurances and Actions
.
Each of the parties hereto, upon the request of the other party hereto, whether before or after the Closing and without further consideration, will do, execute, acknowledge and deliver or cause to be done, executed, acknowledged or delivered all such further acts, deeds, documents, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably necessary to effect complete consummation of the transactions contemplated by this Agreement. Seller, World, Parent and Buyer agree to execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be reasonably necessary in order to consummate or implement expeditiously the transactions contemplated by this Agreement.
SECTION 12.4.
Notices
.
All notices and other communications required or permitted to be given or made pursuant to this Agreement shall be in writing signed by the sender and shall be deemed duly given (a) on the date delivered, if personally delivered, (b) on the date sent by telecopier with automatic confirmation by the transmitting machine showing the proper number of pages were transmitted without error, (c) on the Business Day after being sent by Federal Express or another recognized overnight mail service which utilizes a written form of receipt for next day or next business day delivery or (d) two (2) Business Days after mailing, if mailed by U.S. postage-prepaid certified or registered mail, return receipt requested, in each case addressed to the applicable party at the address set forth below; provided that a party may change its address for receiving notice by the proper giving of notice hereunder:
if to World by U.S. mail, to:
World Surveillance Group Inc.
Mail Code: SWC
Kennedy Space Center, FL 32899
Attn: President
if to World by personal or courier delivery, to:
World Surveillance Group Inc.
State Road 405, Building M6-306A, Room 1400
Kennedy Space Center, FL 32815
Attn: President
if to Seller, to:
Global Telesat Corp.
State Road 405, Building M6-306A, Room 1400
Kennedy Space Center, FL 32815
Attn: President
if to Buyer, to:
Orbital Satcom Corp.
1990 N California Blvd., 8th Floor
Walnut Creek, California 94596
Attn: David Rector, Chief Executive Officer
With a copy to:
Sichenzia Ross Friedman & Ference, LLP
61 Broadway
Suite 3200
New York, New York 10006
Attn: Harvey Kesner, Esq.
(212) 930-9700
(212) 930-9725 (facsimile)
if to Parent, to:
Great West Resources, Inc.
1990 N California Blvd., 8th Floor
Walnut Creek, California 94596
Attn: David Rector, Chief Executive Officer
SECTION 12.5.
Headings
.
The table of contents and headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.
SECTION 12.6.
Severability
.
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any law or public policy, all other terms and provisions of this Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
SECTION 12.7.
Counterparts
.
This Agreement may be executed in one or more counterparts, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto, it being understood that all parties hereto need not sign the same counterpart.
SECTION 12.8.
Entire Agreement; No Third-Party Beneficiaries
.
This Agreement and the Exhibits and Schedules hereto constitute the entire agreement and supersede all prior agreements and understandings, both written and oral (including any letter of intent, memorandum of understanding or term sheet), between or among the parties hereto with respect to the subject matter hereof. Except as specifically provided herein, this Agreement is not intended to confer upon any Person other than the parties hereto any rights or remedies hereunder or thereunder.
SECTION 12.9.
Applicable Law, Venue and Jury Trial Waiver.
This Agreement, the construction, interpretation, and enforcement hereof, and the rights of the parties hereto with respect to all matters arising hereunder or related hereto shall be determined under, governed by, and construed in accordance with the laws of the State of New York without regard to the choice of law principles thereof. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of New York located in The City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby, and hereby irrevocably waives any objection that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
SECTION 12.10.
Specific Performance
.
The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement were not performed in accordance with its terms and that the parties hereto will be entitled to specific performance of such terms, in addition to any other remedy at law or in equity, without the necessity of demonstrating the inadequacy of monetary damages and without the posting of a bond.
SECTION 12.11.
Assignment
.
Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party;
provided
,
however
, that any party may assign its rights and obligations under this Agreement, without the prior written consent of the other parties, to an Affiliate or to a successor of the assigning party by reason of merger, sale of all or substantially all of its assets or any similar transaction. Any permitted assignee or successor-in-interest will assume all obligations of its assignor under this Agreement. No assignment will relieve any party of its responsibility for the performance of any obligation. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
ARTICLE XIII
INDEMNIFICATION
SECTION 13.1
Indemnity Against Claims
.
(a) Buyer and Parent, on the one hand, and Seller and World, on the other hand, each agree to indemnify, defend and hold the other harmless and the other’s shareholders, managers, directors, officers, employees, agents and affiliates (“
Indemnified Party
”) against any and all losses, claims, damages or liabilities and actions, and any legal or other expenses or costs incurred by any Indemnified Party in connection with investigating or defending any such loss, claim, damage, liability or action, regardless of whether an action or claim has been filed or asserted against an Indemnified Party after the Closing Date, arising from, in connection with or with respect to the following items (the “
Indemnified Party Losses
”): (i) any misrepresentation made by the other, or breach or inaccuracy of any representation or warranty made by the other under this Agreement or in any other agreement or document delivered pursuant hereto or in connection herewith or with the closing of the transactions contemplated hereby; and (ii) any nonfulfillment of or failure to comply with any agreement, condition or covenant on the part of the other under this Agreement or any other agreement or document delivered pursuant hereto or in connection herewith or with the closing of the transactions contemplated hereby.
(b) Buyer and Parent hereby agree to further indemnify and hold Seller and World and their employees, officers, directors and affiliates, harmless from and against any and all liabilities or obligations arising from the Purchased Assets and Assumed Liabilities relating to or for periods from and after the Closing Date.
(c) Seller and World hereby agree to further indemnify and hold Buyer and Parent and their employees, officers, directors and affiliates, harmless from and against any and all liabilities or obligations arising from the Purchased Assets and Assumed Liabilities relating to or for periods prior to the Closing Date.
(d) With respect to any third party claims, the Indemnifying Party may participate in the defense at any time or it may assume the defense by giving notice to the Indemnified Party. After assuming the defense, the Indemnifying Party will cooperate fully with the Indemnified Party in the conduct of any proceeding as to which the Indemnifying Party assumes the defense hereunder.
(e) The remedies provided to an Indemnified Party herein shall be cumulative and shall not preclude an Indemnified Party from asserting any other rights or seeking any other remedies against an Indemnifying Party or his or its respective heirs, successors or assigns.
(f) Notwithstanding anything to the contrary herein, Seller’s and World’s aggregate and collective liability pursuant to this Section 13 shall not exceed $250,000.
[Signature Page to be Attached]
IN WITNESS WHEREOF, the parties hereto have caused this Asset Purchase Agreement to be signed by their respective representatives thereunto duly authorized, all as of the date first written above.
SELLER:
Global Telesat Corp.
By:
/s/ Glenn D. Estrella
Name: Glenn D. Estrella
Title: Director
|
|
BUYER:
Orbital Satcom Corp.
By:
/s/ David Rector
Name: David Rector
Title: Chief Executive Officer
|
|
WORLD:
World Surveillance Group Inc.
By:
/s/ Glenn D. Estrella
Name: Glenn D. Estrella
Title: President
|
|
PARENT:
Great West Resources, Inc.
By:
/s/ David Rector
Name: David Rector
Title: Chief Executive Officer
|
Exhibit 10.1
NON-EXCLUSIVE LICENSE AGREEMENT
PREAMBLE
This Non-Exclusive License Agreement (this “Agreement”) is made and entered into effective as of December 10, 2014 (the “Effective Date”) by and among World Surveillance Group Inc. (hereinafter referred to as “World”), Global Telesat Corp. (hereinafter referred to as “GTC”), a wholly-owned subsidiary of World, Great West Resources, Inc. (hereinafter referred to as “Parent”), and Orbital Satcom Corp., a wholly owned subsidiary of Parent (hereinafter referred to as “Licensee” and, together with GTC, World and Parent, the “Parties”).
Whereas,
GTC owns certain appliques identified on Schedule A hereto (the “Licensed Appliques”);
Whereas,
Licensee desires to use the Licensed Appliques in its business operations; and
Whereas,
GTC desires to allow Licensee the right to use the Licensed Appliques, and Licensee desires the right to use the Licensed Appliques, subject to and in accordance with the terms set forth herein.
TERMS AND CONDITIONS
NOW, THEREFORE
, in consideration of the premises, covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
|
1.
|
Authority and Relationship of the Parties
|
Licensee, on the one hand, and GTC, on the other hand, are and shall remain independent contractors throughout the term of this Agreement. Nothing in this Agreement shall be construed to constitute Licensee on the one hand, and GTC, on the other hand, as partners, joint venturers, agents or anything other than independent contractors.
2. GTC License
2.1 Grant of Non-Exclusive License to Licensee
Subject to the terms and conditions of this Agreement, GTC hereby grants to and Licensee hereby accepts a fully-paid and irrevocable non-exclusive license to use the Licensed Appliques identified in more detail on Schedule A hereto (“GTC License”) which shall include the full right to utilize the Licensed Appliques as heretofore or hereafter used by GTC. Licensee acknowledges that (i) this Agreement does not transfer any interest in the ownership or title of any portion of the Licensed Appliques and (ii) Licensee does not own any portion of the Licensed Appliques. GTC shall take no action that shall in any manner diminish or cause any third party to diminish the use of the Licensed Appliques by Licensee.
2.2 Term of License
The GTC License shall have a term (the “Term”) equal to ten (10) years following the Effective Date.
3. GTC Obligations
GTC shall maintain the Licensed Appliques in a manner consistent with past practice and as required by any contract related to the Licensed Appliques for the Term at its or Globalstar’s sole cost and expense.
4. Consideration.
4.1 Shares
On the Effective Date, in consideration of the licenses and the other agreements of GTC hereunder, Parent shall issue to GTC or its designee $2.0 million (USD) of shares of Parent’s common stock (the “Shares”), which shares shall be valued on the basis of the closing price for the day immediately preceding the Effective Date for the Company, as reported on Bloomberg.
4.2 Most Favored Nation Pricing
On the Effective Date, GTC and Parent and Licensee shall enter into a non-assignable VAR or distributor agreement whereby GTC shall for a period of 10 years from the Effective Date receive a discount of 25% off the standard pricing given to any of Licensee’s or Parent’s VARs or distributors on messaging air-time.
5. Right of First Refusal.
5.1 Grant. GTC hereby unconditionally and irrevocably grants to Licensee, or its permitted transferees or assigns, (i) a right of first refusal to purchase some or all of the Licensed Appliques at the depreciated book value of such Licensed Appliques set forth on World’s balance sheets contained in World’s most recently filed Form 10-Q or Form 10-K with the Securities and Exchange Commission (the “Depreciated Book Value Price”), if GTC or World shall apply for or consent to the appointment of a receiver, trustee or liquidator of all or substantially all of its assets, file a voluntary petition in bankruptcy or admit in writing the inability to pay its debts as they become due, or make a general assignment for the benefit of creditors or take advantage of any insolvency law, and (ii) a right to receive notice if a third party has made an offer to purchase some or all of the Licensed Appliques (a “Proposed Applique Transfer”) and the right to make a competing offer to purchase some or all of the Licensed Appliques, such competing offer to contain a price no lower than the Depreciated Book Value Price.
5.2 Notice. Each time GTC receives an offer relating to a Proposed Applique Transfer it must deliver a written notice to Licensee indicating that it has received such an offer (the “Proposed Transfer Notice”) not later than fifteen (15) days prior to the consummation of such Proposed Applique Transfer. Such Proposed Transfer Notice shall indicate only that an offer has been made, but shall not be required to include any of the terms of the offer. To exercise its right under this Section 5, the Licensee must deliver a written notice to GTC conveying the terms of its competing offer to purchase some or all of the Licensed Appliques within five (5) days after delivery of the Proposed Transfer Notice.
6. Confidentiality
The Parties acknowledge and agree that any information including customer names, vendors, pricing schedules, models, data, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, samples, flow charts, computer programs, disks, diskettes, tapes, marketing plans, and/or other technical, financial, or business information related to the GTC License and use of the Licensed Appliques in the operations of GTC’s business constitute valuable trade secrets and confidential information of GTC and World (“Confidential Information”). Parent and Licensee agree that each shall take all reasonable steps to preserve and protect the confidentiality of such Confidential Information.
Parent and Licensee agree to maintain as confidential the Confidential Information and further agree not to disclose the Confidential Information other than as specifically permitted by this Agreement or as required by any governmental law rule or regulation in the United States. At no time shall Parent and Licensee use, or allow others to use or have access to, the Confidential Information for any purpose other than the performance of Parent’s or Licensee’s obligations or exercise of Parent’s or Licensee’s rights under and in accordance with this Agreement or disclose the Confidential Information to any third party without the prior written consent of GTC and World, which may be withheld in their sole discretion, and then only after the party to whom such disclosure will be made has agreed in writing to comply with and be bound by the applicable terms of this Agreement.
7.
Representations and Warranties
7.1 Authority
Each of GTC and World, on the one hand, and Licensee and Parent, on the other hand, represents and warrants to the other of them that (a) this Agreement has been duly executed and delivered and, assuming the due and valid execution and delivery of this Agreement by the other Parties hereto, constitutes a valid and binding agreement enforceable against such Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect, and to general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law, (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement, other than the consent of Globalstar, Inc., and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction applicable to such Party or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
7.2 Ownership of the Licensed Appliques
GTC and World, jointly and severally, represent and warrant that GTC owns the Licensed Appliques free and clear of any liens and as of the Effective Date, it has received no notice of any third party claims against or challenging GTC’s ownership or control of the Licensed Appliques.
7.3
Sufficiency of Licensed Appliques.
The Licensed Appliques are in good working condition and repair, consistent with their current use as conducted by GTC, normal wear and tear excepted. To GTC’s knowledge, there are no material defects in, or conditions with, the Licensed Appliques that will negatively impact Licensee’s ability to use the Licensed Appliques as they are currently used.
7.4 Finder’s Fee
Each of GTC, on the one hand, and Licensee and Parent, on the other hand, represents and warrants to the other of them that no person is entitled to receive a finder’s fee in connection with this Agreement as a result of any action taken by GTC, on the one hand, and Licensee or Parent, on the other hand, respectively, pursuant to this Agreement, and agrees to indemnify and hold harmless the other of them and its or their respective employees, and affiliates, in the event of a breach of this representation and warranty by it. This representation and warranty shall survive the Effective Date.
7.5 Accredited Investor
GTC (and each of its designees to be issued Parent restricted stock) (i) is an “accredited investor,” as that term is defined in Regulation D under the Securities Act of 1933, as amended; (ii) has such knowledge, skill and experience in business and financial matters, based on actual participation, that GTC is capable of evaluating the merits and risks of an investment in Parent and the suitability thereof as an investment for GTC; (iii) has received such documents and information as it has requested and has had an opportunity to ask questions of representatives of Parent concerning the terms and conditions of the investment proposed herein, and such questions were answered to the satisfaction of GTC; and (iv) is in a financial position to hold the Shares for an indefinite time and is able to bear the economic risk and withstand a complete loss of his investment in Parent.
8.1 Indemnification by GTC and World
GTC and World shall defend, protect, indemnify and hold harmless Licensee and Parent and all of their respective stockholders, partners, members, officers, directors, employees and direct or indirect investors and any of the foregoing persons’ agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Licensee Indemnitees”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Licensee Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “Licensee Indemnified Liabilities”), incurred by any Licensee Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by GTC or World in this Agreement, (b) any breach of any covenant, agreement or obligation of GTC or World contained in this Agreement or (c) any cause of action, suit or claim brought or made against such Licensee Indemnitee by a third party (including for these purposes a derivative action brought on behalf of GTC or World) and arising out of or resulting from the execution, delivery, performance or enforcement of this Agreement by Licensee or Parent (unless such action is based upon a misrepresentation or breach of Parent or Licensee’s representations, warranties or covenants under this Agreement or any of the documents contemplated hereby, or any violation by Parent or Licensee of any securities laws, or any conduct by Parent or Licensee which constitutes fraud, gross negligence, willful misconduct or malfeasance). To the extent that the foregoing undertaking by GTC or World may be unenforceable for any reason, GTC and World shall make the maximum contribution to the payment and satisfaction of each of the Licensee Indemnified Liabilities which is permissible under applicable law.
8.2 Indemnification by Parent and Licensee
Parent and Licensee shall defend, protect, indemnify and hold harmless GTC and World and all of their respective stockholders, partners, members, officers, directors, employees and direct or indirect investors and any of the foregoing persons’ agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “
GTC Indemnitees
”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such GTC Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “
GTC Indemnified Liabilities
”), incurred by any GTC Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by Parent or Licensee in this Agreement, (b) any breach of any covenant, agreement or obligation of Parent or Licensee contained in this Agreement or (c) any cause of action, suit or claim brought or made against such GTC Indemnitee by a third party (including for these purposes a derivative action brought on behalf of Parent or Licensee or any subsidiary) and arising out of or resulting from the execution, delivery, performance or enforcement of this Agreement by GTC or World (unless such action is based upon a misrepresentation or breach of GTC or World’s representations, warranties or covenants under this Agreement or any of the documents contemplated hereby, or any violation by GTC or World of any securities laws, or any conduct by GTC or World which constitutes fraud, gross negligence, willful misconduct or malfeasance). To the extent that the foregoing undertaking by Parent and Licensee may be unenforceable for any reason, Parent and Licensee shall make the maximum contribution to the payment and satisfaction of each of the GTC Indemnified Liabilities which is permissible under applicable law.
9 Termination
9.1 Termination by Licensee or Parent
Licensee or Parent may terminate this Agreement under the following circumstances:
If GTC or World shall apply for or consent to the appointment of a receiver, trustee or liquidator of all or substantially all of its assets, file a voluntary petition in bankruptcy or admit in writing the inability to pay its debts as they become due, make a general assignment for the benefit of creditors or take advantage of any insolvency law, subject to a thirty (30) day cure period after written notice of termination by Licensee or Parent.
If GTC or World materially defaults in its performance of any of its material obligations under this Agreement, subject to a thirty (30) day cure period.
If GTC or World materially breaches any of its representations and warranties set forth in Section 7.
9.2 Termination by GTC or World
GTC or World may terminate this Agreement under the following circumstances:
If Licensee or Parent shall apply for or consent to the appointment of a receiver, trustee or liquidator of all or substantially all of its assets, file a voluntary petition in bankruptcy or admit in writing the inability to pay its debts as they become due, make a general assignment for the benefit of creditors or take advantage of any insolvency law, subject to a thirty (30) day cure period after written notice of termination by GTC or World.
If Licensee or Parent materially defaults in its performance of any of its material obligations under this Agreement, subject to a thirty (30) day cure period.
If Licensee or Parent materially breaches any of its representations and warranties set forth in Section 7.
10. General Provisions
10.1 Entire Agreement; Amendment. This Agreement embodies the entire understanding of the Parties and supersedes all other past and present communications and agreements relating to the subject matter. No amendment or modification of this Agreement shall be valid unless made in writing and signed by authorized representatives of both Parties.
10.2 Applicable Law, Venue and Jury Trial Waiver. This Agreement, the construction, interpretation, and enforcement hereof, and the rights of the parties hereto with respect to all matters arising hereunder or related hereto shall be determined under, governed by, and construed in accordance with the laws of the State of New York without regard to the choice of law principles thereof. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of New York located in The City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby, and hereby irrevocably waives any objection that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
10.3 Survival. Each provision of this Agreement that would by its nature or terms survive, shall survive any termination or expiration of this Agreement, regardless of the cause.
10.4 Notices. Notices pursuant to this Agreement shall be sent to the Parties at the addresses on the signature page hereto and are effective when sent if sent by a commercial carrier’s overnight delivery service or when received if sent otherwise.
10.5 Construction. The recitals and preamble to this Agreement, if any, are hereby incorporated as an integral part of this Agreement as if restated herein in full. Headings are included for convenience and reference only and are not incorporated as an integral part of this Agreement. This Agreement may be executed in any number of counterparts each of which shall be deemed an original and as executed shall constitute one agreement, binding on all Parties, even though all Parties do not sign the same counterpart.
10.6 Severability. If any provision in this Agreement is held invalid, illegal, or unenforceable in any respect, such holding shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if it had never contained the invalid, illegal, or unenforceable provisions.
10.7 Remedies. The failure of any Party to insist upon or enforce strict performance by the other Parties of any provision of this Agreement, or to exercise any right or remedy under this Agreement will not be interpreted or construed as a waiver or relinquishment of that Party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. All rights and remedies under this Agreement are cumulative of every other such right or remedy and may be exercised concurrently or separately from time-to-time.
10.8 Further Acts. Each Party shall, at the reasonable request of the others, execute and deliver to the others such instruments and/or documents and shall take such actions as may be required to more effectively carry out the terms of this Agreement. GTC and World shall use commercially reasonable efforts to obtain the consent of Globalstar, Inc. to the transactions contemplated herein as soon as possible following the Effective Date.
[signature page follows immediately]
The signatures of the undersigned indicate that they have read, understand and agree with the terms of this Agreement and have the authority to execute this Agreement on behalf of their represented Party and to bind their Party to all the terms of this Agreement.
GLOBAL TELESAT CORP.
By:
/s/ Glenn Estrella
Name: Glenn D. Estrella
Title: Director
Address for U.S. mail delivery:
Mail Code: SWC
Kennedy Space Center, FL 32899
Attn: President
Address for personal or courier delivery:
State Road 405, Building M6-306A, Room 1400
Kennedy Space Center, FL 32815
Attn: President
WORLD SURVEILLANCE GROUP INC.
By:
/s/ Glenn Estrella
Name: Glenn D. Estrella
Title: President
Address for U.S. mail delivery:
Mail Code: SWC
Kennedy Space Center, FL 32899
Attn: President
Address for personal or courier delivery:
State Road 405, Building M6-306A, Room 1400
Kennedy Space Center, FL 32815
Attn: President
ORBITAL SATCOM CORP.
By:
/s/ David Rector
Name: David Rector
Title: Chief Executive Officer
Address:
1990 N California Blvd., 8th Floor
Walnut Creek, California 94596
GREAT WEST RESOURCES, INC.
By:
/s/ David Rector
Name: David Rector
Title: Chief Executive Officer
Address:
1990 N California Blvd., 8th Floor
Walnut Creek, California 94596
Schedule A
Ogulbey, Turkey
Los Velazques, Venezuela
Meekatharra, Australia
Lurin, Peru
Yeo Ju, Korea
San Martin, Mexico
Easton, Maryland
Novosibirsk, Russia
Schedule 2.2
Contracts
1. Price & Delivery Quote for the acceleration of Remote Telemetry capability and Simplex Data Services dated June 30, 2003 and Globalstar Response to GTC’s Letter of Acceptance dated August 07, 2003
2. Agreement by and between Globalstar LLC and Globalnet Corporation dated May 04, 2005 (the “May Contract”)
3. Assignment and Assumption Agreement by and among Globalstar LLC, Globalnet Corporation and Global Telesat Corp., dated July 28, 2005
4. Agreement amending the May Contract by and between Globalstar, Inc. and Global Telesat Corp., dated August 16, 2006
5. Contract No. GINC-C-11-0520 by and between Global Telesat Corp. and Globalstar, Inc., dated February 10, 2011
