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10/07/97
GLOBALSTAR, L.P.
SUBSCRIPTION AGREEMENT
1. (a) Globalstar, L.P., a limited partnership with offices at 0000, Xxxxxx
Xxxx, Xxx Xxxx, Xxxxxxxxxx, X.X.X. organized under the laws of the State of
Delaware (the "Partnership") for the purpose of developing, designing,
deploying, owning and operating a worldwide low-earth orbit satellite-based
digital telecommunication system ("the Globalstar System") which will, among
other things, extend terrestrial telecommunications networks by radio frequency
access to handhold and various other terminals. China Telecommunications
Broadcast Satellite Corporation ("Chinasat" or "Subscriber") with offices at
Xx.0 Xx Xx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx of China, is an independent
legal entity organized under the laws of China and is under the direct
supervision of the Ministry of Posts and Telecommunications (MPT of CHINA) with
responsibility for the development and operation of satellite telecommunication
including mobile satellite telecommunication services. The Parties reached this
agreement through negotiation based on the existing cooperation and the same
propose to promote the development of Globalstar mobile telecommunication
service. Meanwhile, (i) Whereas, in connection with this Subscription Agreement,
Chinasat has signed the Founding Service Provider Agreement with Globalstar
L.P., set forth attached as Exhibit 3. (ii) Whereas, Globalstar L.P. fully
recognizes that Chinasat will play an important role on promoting Globalstar
mobile telecommunication service in China. Chinasat will have the same right and
obligation as other Limited Partners, based on Percentage Interest. (iii)
Whereas, in connection with the execution of the Service Provider Agreement,
Globalstar L.P. is willing to sell the Partnership Interests to Chinasat. (iv)
Whereas, in connection with the execution of the Service Provider Agreement,
Chinasat is willing to purchase the Partnership Interests from Globalstar L.P.
(v) Whereas, the China Telcom (Hong Kong) Group Limited is a Telecommunications
company under the direct supervision of the Ministry of Posts and
Telecommunications of China with offices at Hong Kong, and with responsibility
for the development and operation of international telecommunication services.
Subject to the Founding Service Provider Agreement dated November 11, 1996 and
item 5(a) of Schedule X hereof, CHINASAT and Globalstar L.P. have agreed that
the Subscription Agreement will be signed by the China Telcom (Hong Kong) Group
Limited and Globalstar L.P. The parties hereby agree: Globalstar L.P. has agreed
to sell Chinasat $37.5 million Partnership Interests set forth on Schedule I and
Schedule II, for an amount in cash in U.S. dollars equal to the Agreed
Contribution set forth on such Schedule I and the Agreed additional Contribution
set forth on Schedule II (the "Agreed Contribution"). Attached hereto as Exhibit
A is the Amended and Restated Agreement of Limited Partnership of Globalstar,
L.P., dated as of December 31, 1994, as amended on March 6, 1996 (the
"Partnership Agreement") and Exchange and Registration Rights Agreement pursuant
to which Subscriber or its Affiliate shall become an Additional Limited Partner
on the Closing Date (as hereinafter defined). Attached hereto as Exhibit 4 is
Exchange and Registration Rights Agreement to be entered into by Chinasat, the
Partnership and Globalstar Telecommunications Limited, a company organized under
the laws of Bermuda ("the Exchange and Registration Rights
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Agreement") pursuit to which Subscriber or its Affiliate shall receive certain
exchange and registration rights described therein. Capitalized terms not
defined herein shall have the meanings set forth in the Partnership Agreement.
(b) In addition to the sale to Subscriber of the Partnership
Interests set forth on Schedule I to this Subscription Agreement, the
Partnership hereby grants to Subscriber, on the terms and subject to the
conditions set forth herein, an option (the "Option") to purchase the additional
Partnership Interests set forth on Schedule II to this Subscription Agreement
(the "Additional Partnership Interests") for an amount in cash in U.S. dollars
equal to the Agreed Additional Contribution set forth on, such Schedule II (the
"Agreed Additional Contribution")
(i) The Option is not currently exercisable and shall not
become exercisable prior to the date on which all of the conditions
to exercise shall have been satisfied (the "Satisfaction Date"). The
following are the conditions to exercise the Option:
(a) Subscriber or an MPT Affiliate shall have purchased
the Partnership Interests set forth on Schedule I to this
Subscription Agreement.
(b) The Service Provider Agreement is in full force and
effect.
(c) Subscriber shall have commenced Globalstar mobile
telecommunications services in China on the Full Service Date (as
defined in the Service Provider Agreement) and revenues from such
service shall have exceeded certain target revenue levels in
accordance with the MOA signed in April of 1996.
(ii) The Option shall be exercisable in whole, but not in
part, on or after the Satisfaction Date through the date that is 30
calendar days after the Satisfaction Date the "Exercise Period.
Subscriber may exercise the Option during the Exercise Period by
delivering a written notice to the Partnership of Subscriber's
election to exercise (the "Exercise Notice"). Upon receipt of the
Exercise Notice, the Partnership shall, within 30 calendar days,
cause to be prepared a subscription agreement, substantially in the
form of this Subscription Agreement (the "Additional Partnership
Interest Subscription Agreement"), relating to the purchase of the
Additional Partnership Interests underlying the Option, which shall
be promptly executed and delivered by the Partnership and
Subscriber. The Partnership shall sell and Subscriber shall purchase
the Additional Partnership Interests for an amount in cash in U.S.
dollars equal to the Agreed Additional Contribution in accordance
with the Additional Partnership Interest Subscription Agreement,
where as closing shall be held no later than 30 days following the
day for additional Partnership Interest Subscription Agreement is
delivered by the Partnership to Chinasat for execution.
2. Subscriber acknowledges that the subscription for the Partnership Interests
set forth on Schedule I to this Subscription Agreement is irrevocable and
subject only to the conditions set forth in Section 10 hereof (the "Closing
Conditions").
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3. Subject to Section 10 hereof, Subscriber shall pay to the Partnership on
November 24, 1997 or on such later date as the Partnership may specify in
writing to Subscriber (the "Closing Date") an amount in cash in U.S. dollars
equal to the Agreed Contribution set forth on Schedule I to this Subscription
Agreement. Subscriber shall pay the Agreed Contribution by wire transfer of same
day funds to [Bank of America, Chicago, Illinois ABA #000000000, for the account
of Globalstar L.P. #79-10061]
4. (Reserved)
5. Subscriber represents and warrants to the Partnership as follows:
(a) The Partnership Interests are being acquired by Subscriber
for investment purposes only and not as a nominee or agent for the
benefit of any other person, and Subscriber has no current intention
of distributing, reselling or assigning the Partnership Interests or
any part thereof other than as set forth in item 5(a)to Schedule X
hereto.
(b) Subscriber understands that the Partnership Interests have
not been registered under the Securities Act of 1933, as amended
(the "1933 Act"), or under the laws of any jurisdiction, and that
the Partnership does not contemplate and is under no obligation to
register the Partnership Interests except pursuit to the Exchange
and Registration Rights Agreement. Subscriber understands and agrees
further (i) that the Partnership Interests must be held indefinitely
unless the Partnership Interests are subsequently registered under
the 1933 Act or other applicable laws or an exemption from
registration under the 1933 Act or other applicable laws covering
the sale of Partnership Interests is available, and (ii) that, even
if an exemption from the 1933 Act or other applicable laws is
available, the assignability and transferability of the Partnership
Interests will be governed by the Partnership Agreement, which
imposes substantial restrictions on transfer. Subscriber understands
that legends stating that the Partnership Interests have not been
registered under the 1933 Act and setting out or referring to the
restrictions on transferability and sale of the Partnership
Interests will be placed on all documents evidencing the Partnership
Interests.
(c) Subscriber has been furnished and has carefully read the
Partnership Agreement, the Form 10-K for the years ended December
31, 1995 and 1996 and l0-Q for the quarters ended March 31, 1997 and
June 30, 1997 of GTL (the "GTL 10-K and l0-Q"), GTL's proxy
statement for its 1996 Annual Meeting (the "GTL Proxy Statement"),
and the Offering Memorandum of GTL dated February 29, 1996, relating
to the issuance by GTL of 6.5% Convertible Preferred Equivalent
Obligations due 2006 (the "GTL Offering Memorandum," and together
with the GTL 10-K and the GTL Proxy Statement, the "GTL Disclosure
Documents").
(d) Subscriber is aware that: (i) an investment in the
Partnership involves a degree of risk and (ii) no Federal or state
agency has approved or disapproved the Partnership Interests nor has
any such agency passed upon the accuracy or adequacy of the
Memorandum.
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(e) Subscriber has sufficient financial resources available to
support the loss of all or a portion of Subscriber's investment in
the Partnership, and is able to bear the economic risk of the
investment.
(f) Subscriber is sophisticated and experienced in investment
matters, and, as a result, Subscriber is in a position to evaluate
an investment in the Partnership.
(g) Subscriber has been furnished any and all materials
Subscriber has requested relating to the Partnership or the offering
of Partnership Interests and Subscriber has been questions of
afforded the opportunity to ask representatives of the Partnership
concerning the terms and conditions of the offering and to obtain
any additional information necessary to verify the accuracy of any
representations or information appearing in the Partnership
Agreement or the GTL Disclosure Documents.
(h) Subscriber has relied only on the Partnership Agreement,
the Exchange and Registration Rights Agreement, the GTL Disclosure
Documents, the representations and warranties set forth in Section
hereto and any other material set forth in item 5(h) to Schedule X
hereto in determining to invest in the Partnership.
(i) Subscriber is an "accredited investor" within the meaning
of Rule 501(a) of Regulation D promulgated under the 1933 Act.
(j) Subscriber has: (i) duly taken any and all action
necessary to authorize Subscriber's execution, delivery and
performance of this Subscription Agreement in accordance with its
terms and (ii) validly executed and delivered this Subscription
Agreement. This Subscription Agreement constitutes the valid and
binding obligation of Subscriber, enforceable in accordance with its
terms. The execution and delivery of this Subscription Agreement do
not and will not, and the performance of the Subscription Agreement,
upon obtaining all required approvals by the People's Republic of
China and any other governmental authority having jurisdiction over
Subscriber, each of which is set forth on Schedule III hereto
(collectively, the "Required Governmental Approvals"), will not (i)
violate any provisions of law, statute, rule or regulation to which
Subscriber is subject or any order, decree or judgment applicable to
Subscriber or (ii) conflict with, result in a material breach of or
constitute (with due notice or lapse of time or both) a material
default under, any term or condition of any indenture, agreement or
other instrument to which Subscriber is a party or by which it or
any of its properties or assets is bound or result in the creation
or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of Subscriber.
(k) Subscriber's fiscal year ends on December 31 and
Subscriber understands and agrees that it shall not attempt to
transfer its interests hereunder unless it shall have first obtained
information relating to the transferee's fiscal year.
(l) To the representations and warranties, if any, set forth
in item 5(1) to Schedule X hereto.
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6. The Partnership represents, warrants and covenants to Subscriber as follows:
(a) The Partnership has been duly formed, is validly existing
and in good standing under the laws of the State of Delaware, and
has all requisite partnership power and authority to conduct the
business in which it proposes to engage as described in the
Partnership Agreement and Exchange and Registration Rights Agreement
(a complete and correct copies of which have been furnished to
Subscriber) and to enter into this Subscription Agreement and
perform its obligations hereunder.
(b) The Partnership Agreement has been duly executed and
delivered by the General Partners and, assuming the valid
authorization, execution and delivery of the Partnership Agreement
by the Limited Partners, will, as to each of such Limited Partners,
constitute a legal, valid and binding agreement, enforceable in
accordance with its terms. The execution and delivery of this
Subscription Agreement and Exchange and Registration Rights
Agreement and the issuance of Partnership Interests contemplated
hereby will not conflict with or result in any violation of or
default under any of the provisions of the Partnership Agreement, or
any agreement or other instrument to which the Partnership is a
party or by which the Partnership or any of its respective
properties are bound, or any permit, franchise, judgment, decree,
statute, rule or regulation applicable to the Partnership or its
business or its respective properties. The Partnership Interest to
be issued and sold to the Subscriber pursuant to this Subscription
Agreement and the Partnership Agreement have been duly and validly
authorized, and when issued and delivered in accordance with the
terms of the Subscription Agreement, will be validly issued, fully
paid and will constitute valid and binding obligations of the
Partnership.
(c) Neither the Partnership nor anyone acting on its behalf of
the Partnership has taken or will take any action that would subject
the issuance and sale of Partnership Interests to the registration
and prospectus delivery provisions of the Securities Act of ,1933,
as amended.
(d) The Partnership is not required to register as an
"investment company" under the Investment Company Act of 1940, as
amended.
(e) This Subscription Agreement, the Partnership Agreement,
the Exchange and Registration Rights Agreement do not, to the best
knowledge of the Partnership, as of the date hereof, and the GTL
Disclosure Documents as of their respective dates do not, to the
best knowledge of the Partnership, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(f) Since March 31, 1997, there has not been any occurrence,
development or change that has had, either alone or together with
all such occurrences, developments or changes, a material adverse
effect on the Partnership.
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(g) The Partnership has acquired or will acquire rights from
QUALCOMM subject and pursuant to terms and conditions of the
QUALCOMM Development Agreement (including but not limited to the
royalty provisions contained therein). The Partnership has acquired
or will acquire rights from SS/L pursuant to the Satellite Contract
and/or (on a royalty-free non-exclusive license basis) from Loral
("Loral") and its Affiliates, Space & Communication Ltd., to use all
of the intellectual property rights owned by such parties which the
Partnership deems necessary to license or acquire or use in regard
to the design, development, deployment and operation of the
Globalstar System, Gateways (as such term is defined in the Service
Provider Agreement) and compatible handsets for the effectuation of
the Partnership's Business Plan. The Partnership has received no
notice that the name and trademark "GLOBALSTAR" or any of the
intellectual property rights described above infringe upon any
patent or copyright, violate a patent license, copyright
registration or any pending application relating thereto or conflict
with or violate any trademark or trade secret right of any person
except for such infringement, violation or conflict which would not
have a material adverse effect on the Partnership or its business.
No licenser who has granted material technology or intellectual
property rights to the Partnership and who is an Affiliate of the
General Partner or an Upper Tier Partner may terminate or modify in
any materially adverse way any material license granted to the
Partnership, even if such licensor were no longer to be an Affiliate
of the General Partner or of an Upper Tier Partner or if the General
Partner withdrew or was removed from or transferred all or part of
its interest in the Partnership or any Upper Tier Partner withdrew
or was removed from or transferred all or part of its interest in
any Upper Tier Partnership or if the Partnership were dissolved. The
General Partner will not, and will not permit any of its Affiliates,
including SS/L to, utilize any of the intellectual property created
pursuant to the Satellite Contract in support of any competing
Mobile Satellite Service (as defined by the FCC).
(h) There are no actions, suits or proceedings pending or, to
the knowledge of the Partnership, threatened against or affecting
the Partnership or any property of the Partnership in any court or
before any arbitrator of any kind or before or by any governmental
authority which in the aggregate, if adversely determined, would
have a material adverse effect on the Partnership or the business of
the Partnership.
(i) Upon the grant by the FCC to Loral/QUALCOMM Partnership,
L.P. ("LQP") as successor to Loral Qualcomm Satellite Services,
Inc., of the license to operate the Globalstar System, as discussed
in the REGULATION" section of the GTL Offering Memorandum, LQP will
utilize such license exclusively through, and for the exclusive
benefit of, the Partnership without further consideration other than
the partnership awarded in respect of rights granted under this
covenant. To the best of the Partnership s knowledge, Affiliates of
the Partnership, including Loral, have provided to the FCC
sufficient evidence of Loral's financial resources and its
endorsement of the Globalstar project to meet the financial
qualification requirements for the grant of the FCC Applications,
and will continue to submit such future financial information
required by the FCC and will not retract the commitments heretofore
made to the FCC. Having due regard for
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the FCC Notice of Proposed Rulemaking, dated January 19, 1994, the
Partnership is not aware of any reason why the grant of the FCC
Applications is unlikely.
7. This agreement shall be executed on the date set forth below. Chinasat will
not become a Limited Partner until the Closing Date. Chinasat shall have the
same rights and obligations defined in the Partnership Agreement and Exchange
and Registration Rights Agreement as other existing Limited Partners after the
Closing Date, based on its Percentage Interest in Globalstar L.P.
8. Subscriber acknowledges receipt of the Partnership Agreement and the GTL
Disclosure Documents, and Subscriber and the General Partners specifically
accept, adopt and agree to each and every provision of the Partnership
Agreement. The Partnership Interests subscribed for and in this Subscription
Agreement will not be deemed issued, or owned by subscriber until the
Partnership Agreement is amended to include subscriber as a Limited Partner as
contemplated by Section 10(e) hereto on or prior to the Closing Date.
9. Subscriber (or its Affiliate) and the Partnership have entered into the
founding Service Provider Agreement, in connection with this Subscription
Agreement, in the form attached hereto as Exhibit 3.
10. The obligations of the Partnership and Subscriber to consummate the
transactions contemplated by this Subscription Agreement are subject to the
following conditions:
(a) Subscriber shall have obtained all Required Governmental
Approvals (as indicated in Schedule III attached hereto);
(b) the representations and warranties of each of the
Partnership and Subscriber contained in this Subscription Agreement
shall be true and correct in all material respects when made at and
as of the Closing Date;
(c) Subscriber shall have received favorable opinions of
counsel, dated the Closing Date, from Xxxxxxx Xxxx & Xxxxxxxxx,
substantially in the forms of Exhibit 1 and 2 hereto;
(d) The Partnership shall have received the Consent of the
Partners (as defined in the Partnership Agreement), with respect to
the admission of Subscriber as a Limited Parter prior to or on the
Closing Date.
(e) Each of the Partnership Agreement and the Exchange and
Registration Right Agreement shall have been amended (i) to reflect
the admission of the Subscriber as a Limited Partner and (ii) The
Subscriber shall be in entitled to all of the rights of a Limited
Partner, set forth in the Partnership Agreement. Concurrently with
the closing, Chinasat, the Partnership and GTL shall have executed
the Exchange and Registration Rights Agreement prior to or on the
Closing Date; and
(f) the additional conditions, if any, set forth in item 10(d)
of Schedule X.
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11. Each party hereto represents that no person or firm acting on behalf of such
party or under such party's authority is or will be entitled to any broker's or
finder's fees or commissions or similar fees directly or indirectly from any of
the parties hereto in connection with any of the transactions contemplated
herein.
12. Subscriber recognizes that the sale of the Partnership Interests to
Subscriber is based upon its representations and warranties as set forth herein,
and hereby agrees to indemnify the Partnership, the General Partners and the
partners, employees, agents and representatives of the Partnership and the
General Partner and their respective partners, employees, agents and
representatives harmless from and against all liability, damage, cost or
expenses (including reasonable attorneys' fees) (i) arising as a result of the
sale or distribution of the Partnership Interests or any part thereof or
interest therein, by the Subscriber in violation of the 1933 Act or other
applicable law, including other federal and state securities laws, or (ii) which
the Partnership, the General Partner and their respective partners, directors,
employees, agents and representatives may incur by reason of any material breach
of such warranties and representations by the Subscriber or any inaccuracy or
other deficiency in the information provided by the Subscriber.
13. The Partnership recognizes that the purchase of the Partnership Interests by
Subscriber is based upon the Partnership's representations and warranties in
this Subscription Agreement, and hereby agrees to defend and indemnify
Subscriber its Affiliates and their respective directors, officers, employees,
agents and representatives against any and all liability, damage, cost or
expense (including reasonable attorneys' fees) which Subscriber or its
Affiliates or their respective directors, officers, employees, agents or
representatives may incur in excess of $100,000, in the aggregate, by reason of
any material breach of such representations and warranties of the Partnership.
14. Such representations and warranties will survive for one year following the
date hereof (provided that the representations and warranties contained in
paragraphs (e) and (I) (other than the first sentence of paragraph (i)) of
Section 6 shall survive until the first anniversary of the Globalstar In-Service
Date, the representations and Warranties contained in Section 6 (h) herein shall
Survive until the first anniversary of the date of discovery of any breach
thereof by Subscriber and the representations and warranties contained in
Section 6(g) and the first sentence of Section 6 (i) of section 5 shall survive
indefinitely), after which time they shall be of no further force or effect,
except with respect to claims asserted prior to such date.
15. This Subscription Agreement shall be construed in accordance with, and
governed in all respects by, the laws of the State of Delaware, U.S.A., without
giving effect to the conflicts of laws provisions thereof.
16. The dispute resolution provision of the Partnership Agreement contained in
Article 15.10 thereof shall apply to this Subscription Agreement.
17. This Subscription Agreement will have two versions, one in English and one
in Chinese, both will be effective upon signing by the Parties.
18. Except as set forth in. item 18 of Schedule X hereto, neither party shall
assign delegate any of the obligations or rights (including the Option) created
under this Subscription Agreement without the prior written consent of the other
party except to an Affiliate, provided
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that no such assignment will relieve Subscriber of any of its obligations
hereunder. This Subscription Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
19. Except as otherwise expressly provided in this Subscription Agreement, all
legal and other fees, costs and expenses incurred in connection with this
Subscription Agreement and the transactions contemplated hereby shall be paid by
the party incurring such fees, costs or expenses.
20. This Subscription Agreement, and the documents referenced herein, represents
the entire agreement and understanding of the parties hereto with reference to
the transactions set forth herein.
21. The waiver by any party hereto of a breach of any provision of this
Subscription Agreement shall not Operate or be construed as a waiver of any
subsequent breach, whether or not similar. This Subscription Agreement may be
amended, modified or supplemented only by a written instrument executed by the
parties through friendly negotiation hereto.
22. All notices, requests, demands or other communications provided herein shall
be made in writing and shall be deemed to have been duly given if delivered
personally, telecopied or sent by registered or certified first class mail,
postage prepaid, as follows: (a) if to the Partnership, to it at the address
shown on the first page hereof; and (b) if to Subscriber to it at the address
shown on Schedule I hereto or to such other address as either party shall have
specified by notice in writing to the other party. All such notices, requests,
demands and communications shall be deemed to have been received on the date of
delivery or telecopy on the third business day after the mailing thereof.
23. The terms and conditions set forth on Schedule X hereto shall be deemed to
be incorporated herein and made part of this Subscription Agreement and shall
supersede any inconsistent provisions hereof.
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24. Subscriber has executed this Subscription Agreement on the date set forth
below.
Date: Oct. 24, 0000
XXXXX TELECOM (HONG KONG) GROUP
LIMITED
By /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: President
Accepted:
GLOBALSTAR, L.P.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Executive Vice President
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SCHEDULE - I
Name of Subscriber:
China Telecommunications Broadcast Satellite Corporation
Address:
Xx.0, Xx Xx Xxxxx Xxxx
Xxxxxxx 000000, People's Republic of China
Telecopier #-.
937,500 Partnership Interests
Agreed Contribution: $18.75 million
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SCHEDULE II
OPTION
Name of Subscriber:
China Telecommunications Broadcast Satellite Corporation
937.500 Additional Partnership Interests*
Agreed Additional Contribution: $18.75 million
* In the event of any reclassification, recapitalization, combination or
exchange of Partnership Interests in the Partnership or other similar events
after the date of this Subscription Agreement, the number and form of additional
Partnership Interests to be purchased shall adjusted appropriately.
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