Contract
Exhibit
10.1
February
5, 2009
J.
Xxxxxxx Xxxxx
c/o ICO
Global Communications (Holdings) Limited
00000
Xxxxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx,
XX 00000
Dear
Xxx:
This
letter sets forth the substance of the agreement (the “Agreement”) between you
and ICO Global Communications (Holdings) Limited (together with its affiliates,
the “Company”) in light of the decision of you and the Company to
separate.
1. Separation. Your
last day of work with the Company and your employment termination date will be
February 15, 2009 (the “Separation Date”). The Letter Agreement between you and the
Company dated November 1, 2005, will by terminated on the Separation Date in all
respects. The payments and other benefits under this Agreement
and the Consulting Agreement are in lieu of any payments and other benefits to
which you would be eligible for under the Letter Agreement or any other
arrangement between you and the Company.
2. Accrued Salary and
Vacation. On the next regular payroll date for the period
preceding the Separation Date, the Company will pay you all accrued salary and
all accrued and unused vacation earned through the Separation Date, subject to
standard payroll deductions and withholdings. You will receive these
payments regardless of whether or not you sign this Agreement.
3. Consulting
Agreement. If you execute and deliver to the Company
this Agreement and do not revoke it, and execute and deliver to the Company the
Consulting Agreement attached hereto as Exhibit A (“Consulting Agreement”), and
resign from the boards and as an officer of the Company and ICO North America,
Inc., then following the “Effective Date” (as defined below) the Company will
execute the Consulting Agreement pursuant to which you will be eligible to
provide consulting services following the Separation Date.
4. Benefit
Plans. If you are currently participating in the Company’s
group health insurance plans, to the extent provided by the federal COBRA law
or, if applicable, state insurance laws, and by the Company’s current group
health insurance policies, you will be eligible to continue your group health
insurance benefits at your own expense. Later, you may be able to
convert to an individual policy through the provider of the Company’s health
insurance, if you wish. The Company contribution to your 401(k) Plan
and any contributions by you will end with your paycheck for the February pay
period. You will receive information by mail concerning 401(k) plan
rollover procedures. All participation to any other Company plans
will also cease as of the Separation Date.
5. Stock
Awards. Vesting of awards granted to you under the
Company’s stock
plan for your service as an employee (“Awards”) will cease as of the Separation
Date, unless you and the Company execute the Consulting Agreement, in which case
vesting of the Awards shall continue pursuant to the terms of the Consulting
Agreement. Vesting of Awards granted to you under the Company’s stock plan for your
service as a director will cease as of the date you resign from the boards of the Company and ICO North
America, Inc.
6. Other Compensation or
Benefits. You acknowledge that, except as expressly provided
in this Agreement, you will not receive any additional compensation, severance
or benefits after the Separation Date, except for that provided under the
Consulting Agreement.
7. Expense
Reimbursements. You agree that, within fifteen (15) days of
the Separation Date, you will submit your final documented expense reimbursement
statement reflecting all business expenses you incurred through the Separation
Date, if any, for which you seek reimbursement. The Company will
reimburse you for reasonable business expenses pursuant to its regular business
practice.
8. Return of Company
Property. Unless you and the Company execute the Consulting
Agreement, you agree to return to the Company by the Separation Date all Company
documents (and all copies thereof) and other Company property that you have had
in your possession at any time, including, but not limited to, Company files,
notes, drawings, records, business plans and forecasts, financial information,
specifications, computer-recorded information, tangible property (including, but
not limited to, computers), credit cards, entry cards, identification badges and
keys; and, any materials of any kind that contain or embody any proprietary or
confidential information of the Company (and all reproductions
thereof).
9. Proprietary Information and
Post-Termination Obligations. You acknowledge your obligations
under the ICO Intellectual Property Agreement dated as of February 5, 2009 (a
copy of which is attached hereto as Exhibit B) not to use or disclose any
confidential or proprietary information of the Company.
10. Nondisparagement. Each of you
and the Company agree not to disparage each other, and in the case of the
Company, you agree not to disparage the Company’s attorneys, directors,
managers, partners, employees, agents and affiliates, in any manner likely to be
harmful to you or the Company, or their respective business, business reputation
or personal reputation; provided that you and the Company may respond accurately
and fully to any question, inquiry or request for information when required by
legal process.
11. Your Release. In
exchange for the Company’s agreement to enter into the Consulting Agreement, to
which you would not otherwise be entitled, and except as otherwise set forth in
this Agreement, you hereby generally and completely release, acquit and forever
discharge the Company, its parents and subsidiaries, and its and their officers,
directors, managers, partners, agents, servants, employees, attorneys,
shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys fees,
damages, indemnities and obligations of every kind and nature, in law, equity,
or otherwise, both known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising out of or in any way related to agreements, events, acts or
conduct at any time prior to and including the execution date of this Agreement,
including but not limited to: all such claims and demands directly or
indirectly arising out of or in any way connected with your employment with the
Company or the termination of that employment, including but not limited to any
claims relating to severance or any other benefit provided under the employment
letter between you and the Company dated November 1, 2005; claims or demands
related to salary, bonuses, commissions, stock, stock options, or any other
ownership interests in the Company, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of compensation; claims
pursuant to any federal, state or local law, statute, or cause of action; tort
law; or contract law. The claims and causes of action you are
releasing and waiving in this Agreement include, but are not limited to, any and
all claims and causes of action that the Company, its parents and subsidiaries,
and its and their respective officers, directors, agents, servants, employees,
attorneys, shareholders, successors, assigns or affiliates:
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has
violated its personnel policies, handbooks, contracts of employment, or
covenants of good faith and fair dealing; has discriminated against you on
the basis of age, race, color, sex (including sexual harassment), national
origin, ancestry, disability, religion, sexual orientation, marital
status, parental status, source of income, entitlement to benefits, any
union activities or other protected category in violation of any local,
state or federal law, constitution, ordinance, or regulation, including
but not limited to: the Age Discrimination in Employment Act, as amended
(the “ADEA”); Title VII of the Civil Rights Act of 1964, as amended; 42
U.S.C. § 1981, as amended; the Equal Pay Act; the Americans With
Disabilities Act; the Family and Medical Leave Act; the Virginia Human
Rights Act; and the Virginians with Disabilities
Act.
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the
Employee Retirement Income Security Act; Section 510; and the National
Labor Relations Act;
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has
violated any statute, public policy or common law (including but not
limited to claims for retaliatory discharge; negligent hiring, retention
or supervision; defamation; intentional or negligent infliction of
emotional distress and/or mental anguish; intentional interference with
contract; negligence; detrimental reliance; loss of consortium to you or
any member of your family and/or promissory
estoppel).
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Notwithstanding
the foregoing, you are not releasing any right of indemnification you may have
for any liabilities arising from your actions within the course and scope of
your employment with the Company or within the course and scope of your role as
a member of the Board of Directors and/or officer of the Company, and the
Company will not seek to exclude you in any directors and officers insurance
coverage it may maintain in the future. Also excluded from this
Agreement are any claims which cannot be waived by law. You are waiving,
however, your right to any monetary recovery should any governmental agency or
entity, such as the EEOC or the DOL, pursue any claims on your behalf. You
acknowledge that you are knowingly and voluntarily waiving and releasing any
rights you may have under the ADEA, as amended.
You also
acknowledge that (i) the consideration given to you in exchange for the waiver
and release in this Agreement is in addition to anything of value to which you
were already entitled, and (ii) that you have been paid for all time worked,
have received all the leave, leaves of absence and leave benefits and
protections for which you are eligible, and have not suffered any on-the-job
injury for which you have not already filed a claim. You further acknowledge
that you have been advised by this writing that: (a) your waiver and
release do not apply to any rights or claims that may arise after the execution
date of this Agreement; (b) you have been advised hereby that you have the right
to consult with an attorney prior to executing this Agreement; (c) you have
twenty-one (21) days to consider this Agreement (although you may choose to
voluntarily execute this Agreement earlier and if you do you will sign the
Consideration Period waiver attached as Exhibit B); (d) you have seven (7) days
following your execution of this Agreement to revoke the Agreement; and (e) this
Agreement shall not be effective until the date upon which the revocation period
has expired unexercised (the “Effective Date”), which shall be the eighth day
after this Agreement is executed by you.
12. Our
Release. Except as otherwise set forth in this Agreement, and
only to the extent the Company has actual knowledge of the Claim (as defined
below) as of the Separation Date, the Company hereby generally and completely
releases, acquits and forever discharges you from any and all known claims,
liabilities, demands, causes of action, costs, expenses, attorneys fees,
damages, indemnities and obligations of every kind and nature, in law, equity,
or otherwise (“Claim”), arising out of or in any way related to agreements,
events, acts or conduct at any time prior to and including the execution date of
this Agreement, including but not limited to: all such claims and
demands directly or indirectly arising out of or in any way connected with your
employment with the Company; provided, however,
that without limiting the
foregoing, nothing in this paragraph shall be deemed to release you from your
post-termination obligations or Claims arising out of your post-termination
obligations under the ICO Intellectual Property Agreement attached as Exhibit
B.
13. No
Admission. This Agreement does not constitute an admission by
either you or the Company of any wrongful action or violation of any federal,
state, or local statute, or common law rights, including those relating to the
provisions of any law or statute concerning employment actions, or of any other
possible or claimed violation of law or rights.
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14. Breach. You agree that
upon any material breach of this Agreement you will forfeit all amounts paid or
owing to you under this Agreement. Further, you acknowledge that it
may be impossible to assess the damages caused by your violation of the terms of
paragraphs 8, 9, 10, and 11 of this Agreement and further agree that any
threatened or actual violation or breach of those paragraphs of this Agreement
will constitute immediate and irreparable injury to the Company. You
therefore agree that any such breach of this Agreement is a material breach of
this Agreement, and, in addition to any and all other damages and remedies
available to the Company upon your breach of this Agreement, the Company shall
be entitled to an injunction to prevent you from violating or breaching this
Agreement. You agree that if the Company is successful in whole or
part in any legal or equitable action against you under this Agreement, you
agree to pay all of the costs, including reasonable attorney’s fees, incurred by
the Company in enforcing the terms of this Agreement.
15. Arbitration. Any dispute arising under or
related to this Agreement shall be resolved by binding arbitration under the
Commercial Arbitration Rules and administration of the American Arbitration
Association (“AAA”) before one (1) arbitrator jointly selected
by the parties or, if the parties are unable to agree, appointed under the AAA
rules. Such arbitration shall take place in Washington, DC or Reston, VA, unless
otherwise agreed in writing. The arbitration award shall be final and binding upon the parties
and judgment may be entered upon the application of either party by the court
having the jurisdiction. Each party shall bear the cost of preparing
and presenting its case, and the cost of the arbitration (including fees and expenses of the arbitrators)
shall be shared equally by the parties unless the award otherwise
provides.
16. Miscellaneous. This Agreement, including
Exhibits A and B, constitutes the complete, final and exclusive embodiment of
the entire agreement between you and the Company with regard to this subject
matter. It is entered into without reliance on any promise or
representation, written or oral, other than those expressly contained herein,
and it supersedes any other such promises, warranties or
representations. This Agreement may not be modified or amended except
in a writing signed by both you and a duly authorized officer of the
Company. This Agreement will bind the heirs, personal
representatives, successors and assigns of both you and the Company, and inure
to the benefit of both you and the Company, their heirs, successors and
assigns. If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, this determination will not
affect any other provision of this Agreement and the provision in question will
be modified by the court so as to be rendered enforceable. This
Agreement will be deemed to have been entered into and will be construed and
enforced in accordance with the laws of the State of Virginia as applied to
contracts made and to be performed entirely within Virginia, without regard to
choice of law principles. The Company and you
agree that each has had the opportunity to seek legal counsel and tax advice
regarding this Agreement and the Consulting Agreement, and neither is relying on
the other for legal or tax advice. This Agreement may be
executed in any number of counterparts, including any counterpart transmitted by
electronic means such as email or facsimile, all of which when taken together
shall constitute one agreement binding on each party, notwithstanding that each
party is not a signatory to the same counterpart.
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If this
Agreement is acceptable to you, please sign below and return the original to
me.
I wish you good luck in your future
endeavors.
Sincerely,
ICO Global Communications (Holdings)
Limited
By: /s/ Xxxxxxx
Xxxxxxx
Xxxxxxx Xxxxxxx
Acting Chief Executive
Officer,
Chief Financial
Officer
Agreed to and
Accepted:
/s/ J. Xxxxxxx Xxxxx
J. Xxxxxxx Xxxxx
CONSIDERATION
PERIOD
I, J.
Xxxxxxx Xxxxx, understand that I have the right to take at least 21 days to
consider whether to sign this Agreement, which I received on February 5,
2009. If I elect to sign this Agreement before 21 days have passed, I
understand I am to sign and date below this paragraph to confirm that I
knowingly and voluntarily agree to waive the 21-day consideration
period.
Agreed:
/s/ J.
Xxxxxxx Xxxxx
Employee Signature
2/5/09
Date
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EXHIBIT A TO SEPARATION
AGREEMENT
CONSULTING AGREEMENT
This
consulting agreement (“Consulting Agreement”) is made and entered into effective
as of February 15, 2009 (“Effective Date”), by and between ICO Global
Communication (Holdings) Limited of 00000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 0000,
Xxxxxx XX 00000, XXX (together with its affiliates, “ICO” or the ”Company”) and
J. Xxxxxxx Xxxxx, a resident of Virginia (“Consultant").
In consideration of the mutual
covenants set forth below, the parties hereby agree as follows:
1. Engagement of Services and
Statement of Work
Pursuant to the provisions of this
Consulting Agreement, Consultant is hereby retained by ICO to perform services
for ICO. Consultant shall provide the services set forth in Xxxxxxxx
0, Xxxxxxxxx of Work and Procedures (“Statement of Work”), and other services
reasonably requested by ICO’s Chairman of the Board (“Chairman”)
(“Services”). A Statement of Work can only be amended in a writing
signed by the parties. Consultant shall follow the procedures in the
Statement of Work in performing all Services. Consultant shall not
perform any services other than Services and shall communicate with third
parties only as reasonably necessary to perform the Services.
2. Contact and Key
Personnel
Consultant’s contact person at ICO
shall be ICO’s Chairman. Consultant may not retain third parties to
carry out any of its obligations hereunder unless Consultant obtains ICO’s prior
written consent, which shall be determined in ICO’s sole
discretion.
3. Compensation
In
consideration for Consultant’s performance of the Services, ICO agrees to
compensate Consultant as follows:
(a) ICO
shall pay Consultant $50,000 per month plus the after-tax cost of COBRA coverage
for Consultant and his family. Consultant agrees that he will work on
ICO matters on a reasonably mutually agreeable as-needed
basis. Travel time, as requested and/or approved in advance by ICO,
shall be included in such time.
(b)
Consultant shall continue to vest in his stock options and restricted stock
awards granted under the Company’s stock plan (“Awards”) for his service as an
employee pursuant to the terms of those Awards as long as he remains a service
provider under this Consulting Agreement. Subject to the approval of
the Company’s Compensation Committee, Consultant shall have 12 months following
the expiration of this Consulting Agreement to exercise any vested
options.
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(c) In
completing the consulting services, Consultant agrees to provide his own
equipment, tools and other materials at his own expense; however, ICO shall
reimburse Consultant for reasonable travel expenses incurred by the Consultant
in the course of performing services under this Consulting Agreement;
provided, however, that ICO shall not be obligated hereunder unless (i) ICO has
agreed in advance to reimburse such costs and, (ii) Consultant provides ICO with
appropriate receipts or other relevant documentation for all such costs as part
of any submission for reimbursement in accordance with ICO’s standard
policies.
4. Billing and
Payments
Consultant
will submit invoices by e-mail to ICO monthly for the Services for the previous
month. Payment for the Services is due and payable within fifteen
(15) days of ICO’s receipt of an invoice. Payment will be by check
drawn against a US bank account. Late payments beyond this fifteen
(15) day period will be subject to a monthly finance charge of 1% of the amount
outstanding.
5. Independent
Contractor
(a)
Consultant acknowledges and agrees that he is an independent contractor and that
neither he nor any of his employees or sub-contractors (if any) is entitled to
participate in any of ICO's benefit plans, including, without limitation:
vacation, disability, life insurance, attendance bonuses, pre-retirement leave,
pension and annuity, 401(k), and accidental death and dismemberment, health or
related benefits. In addition, Consultant (and Consultant’s agents,
employees, and contractors) waives any and all rights, if any, to participation
in any of ICO’s fringe benefit plans or programs including, but not limited to,
health, sickness, accident or dental coverage, life insurance, disability
benefits, severance, accidental death and dismemberment coverage, unemployment
insurance coverage, workers’ compensation coverage, and pension or 401(k)
benefit(s) provided by ICO to its employees.
(b)
Consultant represents that: (i) to the extent necessary for
Consultant to perform under this Consulting Agreement, he is and will continue
to be for the term of this Consulting Agreement in compliance with all
applicable federal, state, and local laws, ordinances, and regulations; (ii) he
can enter into this Consulting Agreement without violating any contractual,
professional, or other legal obligations he may have; (iii) ICO shall not be
liable for the payment of any salaries, income tax withholding, social security
tax withholding, workers’ compensation insurance or disability insurance
premiums, benefits, or other appearances of direct employment for Consultant;
and (iv) Consultant is solely responsible for, and will timely file all tax
returns and payments required to be filed with, or made to, any federal, state
or local tax authority with respect to the performance of services and receipt
of fees under this Consulting Agreement.
(c)
Consultant agrees and warrants, as an independent contractor, to perform the
Services with all reasonable skill, care and diligence on a best efforts basis
in a timely manner, provided that such “best efforts” shall not require
performance to a commercially unreasonable standard. As an
independent contractor, the mode, manner, method and means used by Consultant in
the performance of services shall be of Consultant’s selection and under the
sole control and direction of Consultant. Consultant shall be free at
all times to arrange the time and manner of performance of the consulting
services. Consultant is not required to maintain any schedule of
duties or assignments.
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(d)
Consultant is not authorized to represent that he is an agent, employee, or
legal representative of ICO. Consultant is not authorized to make any
representation, contract, or commitment on behalf of ICO or incur any
liabilities or obligations of any kind in the name of or on behalf of
ICO.
(e)
Consultant may retain his Company provided computer, and during the term of this
Consulting Agreement, the Company will permit Consultant to continue to access
email via the Company system.
6. Confidentiality.
Consultant
shall keep ICO’s information confidential according to the terms of the ICO
Intellectual Property Agreement between the parties dated February 5, 2009, and
attached hereto as Exhibit B. Nothing in this Consulting Agreement
shall modify or abrogate the terms of the Intellectual Property Agreement and
any post termination restrictions in the Intellectual Property Agreement shall
run from the date consultant ceases to perform services under this Consulting
Agreement.
7. No Conflict of Interest or
Improper Use of Materials
(a)
Consultant represents and warrants that he will not use in the performance of
the Services any materials, documents or information for which Consultant owes a
continued duty of confidentiality.
(b)
Consultant acknowledges and agrees to comply with the Noncompetition section
(Section 4) contained in the ICO Intellectual Property Agreement dated February
5, 2009, and attached hereto as Exhibit B.
8. Term and
Termination
(a) Unless
previously terminated as set forth below, this Consulting Agreement shall
terminate on August 15, 2010. The obligations and liabilities of ICO
and Consultant may be terminated as follows: (i) Either party may terminate
this Consulting Agreement in the event of a material breach by the other party
if such breach continues uncured for a period of thirty (30) days after written
notice of such breach; and (b) Consultant may terminate this Consulting
Agreement upon thirty (30) days written notice to the Company. Upon
any such termination, the parties shall remain subject to Sections 3(a) and (b)
hereof through the date such termination becomes effective, and in addition, ICO
shall remain obligated to reimburse Consultant for expenses incurred pursuant to
Section 3(c) through the date of termination, and shall promptly reimburse
Consultant upon being invoiced.
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(b) Upon
any termination or expiration of this Consulting Agreement, Consultant (i) shall
immediately discontinue all use of ICO’s confidential information delivered
under this Consulting Agreement; (ii) shall delete any such ICO confidential
information from Consultant’s computer storage or any other media, including,
but not limited to, online and off-line libraries; and (iii) shall return to ICO
or, at ICO’s option, destroy, all copies of such confidential information then
in Consultant’s possession.
(c) The
following provisions shall survive despite any termination of this Consulting
Agreement: 6, 8, 9, 10, 11, 13, 14, 15 and 16.
9. Assignment
The rights and liabilities of the
parties shall bind and inure to the benefit of their respective successors,
heirs, executors and administrators, as the case may be. Because ICO
has specifically contracted for the services of Consultant, Consultant may not
assign or delegate Consultant's obligations under this Consulting Agreement
either in whole or in part without the prior written consent of
ICO.
10. Governing Law,
Severability
This Consulting Agreement shall be
governed by and construed according to the laws of the State of Virginia, USA,
excluding its choice of law provisions. If any provision of this
Consulting Agreement is found by a court of competent jurisdiction to be
unenforceable, that provision shall be severed and the remainder of this
Consulting Agreement shall continue in full force and effect.
11. Arbitration
Any
dispute arising under or related to this Consulting Agreement shall be resolved
by binding arbitration under the Commercial Arbitration Rules and administration
of the American Arbitration Association (“AAA”) before one (1) arbitrator
jointly selected by the parties or, if the parties are unable to agree,
appointed under the AAA rules. Such arbitration shall take place in Washington,
DC or Reston, VA, unless otherwise agreed in writing. The arbitration
award shall be final and binding upon the parties and judgment may be entered
upon the application of either party by the court having the
jurisdiction. Each party shall bear the cost of preparing and
presenting its case, and the cost of the arbitration (including fees and
expenses of the arbitrators) shall be shared equally by the parties unless the
award otherwise provides.
12. Notices
Any notices required or permitted
hereunder shall be given to the appropriate party at the address specified in
this Consulting Agreement or at such other address as the party shall
specify in writing. Such notice shall be deemed given upon personal
delivery to the appropriate address or, if sent by overnight courier, one
(1) day after the sending, or, if sent by certified or registered mail,
three (3) days after the date of mailing.
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13. Limitation
of Damages
EXCEPT AS
PROVIDED IN SECTIONS 6, 14 AND 15, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE
FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, EVEN IF THE OTHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AND (B) EITHER PARTY’S SOLE
LIABILITY TO THE OTHER PARTY, IF ANY, SHALL IN NO EVENT EXCEED THE FEES PAID BY
ICO UNDER THIS CONSULTING AGREEMENT.
14. Indemnification
Each
party shall indemnify and hold harmless the other party (including for
reasonable attorneys’ fees and costs) from any and all losses, claims, damages
and liability, including reasonable attorneys’ fees and costs, for any
third-party claims arising out of the indemnifying party’s breach of this
Consulting Agreement, misconduct or negligence.
15. Intellectual
Property
(a) Any intellectual
property created under this Consulting Agreement shall be governed by the ICO
Service Provider Intellectual Property Agreement dated February 5,
2009.
(b) Consultant represents and
warrants that, to his knowledge, no aspect of the Services will infringe the
intellectual property rights of any third party.
16. Complete Understanding;
Modification
This
Consulting Agreement, including all other documents mentioned herein,
constitutes the final, exclusive and complete understanding and agreement of the
parties hereto and supersedes all prior understandings and
agreements. Any waiver, modification or amendment of any provision of
this Consulting Agreement shall be effective only if in writing and signed by
the parties hereto. This Consulting Agreement may be executed in any number of
counterparts, including any counterpart transmitted by electronic means such as
email or facsimile, all of which when taken together shall constitute one
agreement binding on each party, notwithstanding that each party is not a
signatory to the same counterpart.
IN
WITNESS WHEREOF, the Parties hereto have executed this Consulting Agreement as
of the date first written above.
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ICO
Global Communications (Holdings) Limited.
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J.
Xxxxxxx Xxxxx
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/s/
Xxxxxxx X. Xxxxxxx
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/s/
J. Xxxxxxx Xxxxx
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By:
Xxxxxxx X. Xxxxxxx
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By: J. Xxxxxxx Xxxxx | |
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Acting
Chief Executive Officer,
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Chief
Financial Officer
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APPENDIX
1 TO CONSULTING AGREEMENT
Statement
of Work and Procedures
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1.
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Consultant
shall undertake those tasks as specifically requested by the Chairman of
the Board.
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2.
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Consultant
shall not undertake to perform any tasks unless the Chairman specifically
requests such action.
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EXHIBIT B TO SEPARATION
AGREEMENT
ICO
INTELLECTUAL PROPERTY AGREEMENT
(Confidentiality,
Invention Assignment, Nonsolicitation and Noncompetition)
I
acknowledge that my service provider relationship, including without limitation
my employee relationship from inception through February 15, 2009, and my
consultant relationship thereafter with ICO Global Communications (Holdings)
Limited, and/or ICO North America, Inc. and/or any of their subsidiaries
(collectively “ICO”) has been, is and will be one of trust and
confidence. I understand and acknowledge that ICO has a legitimate
interest in preventing the dissemination or misuse of Confidential Information
including Trade Secrets belonging to ICO, and any of its related or affiliated
entities and therefore agree to sign this ICO Intellectual Property Agreement
(“Agreement”).
NOW,
THEREFORE, as a condition of my service provider relationship with ICO and in
consideration of compensation and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, I agree as follows:
1. Non-Disclosure of Confidential
Information. I recognize and acknowledge that during the
course of my service provider relationship with ICO, I will have access to
certain information not generally known to the public, relating to ICO’s
business. I agree that this information is “Confidential Information”
that belongs to ICO.
1.1 “Confidential Information”
includes, without limitation, any information in whatever form that ICO
reasonably considers to be confidential, proprietary, information and that is
not publicly or generally available relating to ICO’s: trade secrets
(as defined by the Uniform Trade Secrets Act); investors; financial
institutions; know-how; concepts; methods; research and development; software
(including functional specifications, source code and object code); procedures;
product, content and technology development plans; marketing; databases;
inventions; research data and mechanisms; procedures; engineering; purchasing;
accounting; sales; customers; financial status; contracts or
employees. Confidential Information includes information developed by
me, alone or with others, or entrusted to ICO by others.
1.2 During the term of my
service provider relationship and thereafter, I agree to hold ICO’s Confidential
Information in strict confidence, and not disclose or use it at any time except
as authorized by ICO and for ICO’s benefit. If anyone tries to compel
me to disclose any of ICO’s Confidential Information, by subpoena or otherwise,
I will immediately notify ICO so that ICO may take any actions it deems
necessary to protect its interests. My agreement to protect ICO’s
Confidential Information applies both while I am a service provider for ICO and
after my service provider relationship with ICO ends, regardless of the reason
it ends.
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1.3 I understand it is ICO’s
policy not to improperly obtain or use confidential, proprietary or trade secret
information that belongs to third parties, including others who have employed me
or who have entrusted confidential information to me. I will not use
for ICO’s benefit or disclose to ICO confidential, proprietary or trade secret
information that belongs to others, unless I advise ICO that the information
belongs to a third party and both ICO and the owners of the information consent
to the disclosure and use.
2. Inventions, Copyrights and
Patents. ICO shall own or be assigned by me all copyrightable
“Work Product” I make, conceive, develop, discover, reduce to practice or fix in
a tangible medium of expression, alone or with others,
either: (a) during my service provider relationship by ICO
irrespective of whether or not such Invention was made using ICO’s time or
facilities; or (b) within one (1) year after my service provider
relationship ends if the Invention or Work Product results from any work, idea
or conception (either partial or completed) I performed for ICO or involves the
use or assistance of ICO’s facilities, materials, personnel or Confidential
Information. ICO shall own or be assigned by me all Inventions that I
conceived solely or jointly or helped to reduce to practice while a service
provider for ICO, and copyrightable Work Product authored by me that I bring to
ICO and that is used in the course of ICO’s business or that is incorporated
into any Work Product that belong to ICO.
2.1 Definition of
“Inventions.” “Inventions” includes, but is not limited to,
recipes, discoveries, developments, concepts, ideas, improvements to existing
technology, processes, procedures, machines, products, compositions of matter,
formulas, algorithms, computer programs and techniques (including functional
specifications, source code and object code), and all other matters ordinarily
intended by the word “invention,” whether patentable or not or otherwise legally
protectable. “Inventions” also includes all records showing any part
of a conception or a reduction to practice relating to an
Invention.
2.2 Definition of “Work
Product.” “Work Product” includes, but is not limited to,
original works of authorship, including interim work product, modifications and
derivative works, and all similar matters, whether or not
copyrightable.
2.3 Definition of “Works Made For
Hire.” All Work Product I produce within the scope of my
service provider relationship or using ICO facilities (which shall include all
Work Product I produce related to ICO’s business, whether or not done during
regular working hours) shall be considered “Works Made For Hire” so that ICO
will be considered the author of the Work Product under the federal copyright
laws.
2.4 Assignment of
Rights. I will promptly disclose to ICO, and will assign all
right, title and interest to ICO, all Inventions and copyrightable Work Product
described in paragraphs 2.1 and 2.2, including assignment of all copyrights
(including renewal rights), patent rights and trade secret rights. I
waive any rights I have or may have in the Inventions and copyrightable Work
Product described in the prior paragraphs. At ICO’s direction and
expense, I will execute all documents and take all actions necessary or
convenient for ICO to document, obtain, maintain or assign its rights to the
Inventions or Work Product. ICO shall have full direct and control
all patent applications of these Inventions. In the event ICO is
unable for any reason, after reasonable effort, to secure my signature on any
document needed in connection with the actions specified in the preceding
paragraph, I hereby irrevocably designate and appoint ICO and its duly
authorized officers and agents as my agent and attorney in fact, which
appointment is coupled with an interest, to act for and in my behalf to execute,
verify and file any such documents and to do all other lawfully permitted acts
to further the purposes of the preceding paragraph with the same legal force and
effect as if executed by me.
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2.5 Unassigned or Nonassignable
Inventions. I recognize that this
Agreement will not be deemed to require assignment of any Invention that I
developed entirely on my own time without using ICO’s equipment, supplies,
facilities, trade secrets, or Confidential Information, except for those
Inventions that either (i) relate to ICO’s actual or anticipated business,
research or development, or (ii) result from or are connected with work
performed by me for ICO. In addition, this Agreement does not apply
to any Invention which qualifies fully for protection from assignment to ICO
under any specifically applicable state law, regulation, rule, or public policy
(“Specific Inventions Law”).
2.6 Prior
Inventions. Inventions, if any, patented or unpatented, which
I made prior to the commencement of my service provider relationship with ICO
are excluded from the scope of this Agreement. To preclude any
possible uncertainty, I have set forth on Exhibit A (Previous
Inventions) attached hereto a complete list of all Inventions that I have, alone
or jointly with others, conceived, developed or reduced to practice or caused to
be conceived, developed or reduced to practice prior to my service provider
relationship with ICO, that I consider to be my property or the property of
third parties, and that I wish to have excluded from the scope of this Agreement
(collectively referred to as “Prior
Inventions”). If disclosure of any such Prior Invention would
cause me to violate any prior confidentiality agreement, I understand that I am
not to list such Prior Inventions in Exhibit A but am only to
disclose a cursory name for each such invention, a listing of the party(ies) to
whom it belongs and the fact that full disclosure as to such inventions has not
been made for that reason. A space is provided on Exhibit A for such
purpose. If no such disclosure is attached, I represent that there
are no Prior Inventions. If, in the course of my service provider
relationship with ICO, I incorporate a Prior Invention into an ICO product,
process or machine, ICO is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, fully-paid, worldwide license (with rights
to sublicense through multiple tiers of sublicensees) to make, have made,
modify, reproduce, make derivative works of, publicly perform, publicly display,
use, sell, import, and exercise any and all present and future rights in such
Prior Invention. Notwithstanding the foregoing, I agree that I will
not incorporate, or permit to be incorporated, Prior Inventions in any
Inventions without ICO’s prior written consent.
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3. Nonsolicitation and
Noninterference. During the course of my service provider
relationship and for a period of one (1) year thereafter, I shall not directly
or indirectly solicit, recruit, entice or provide assistance to any of the
following to (or attempt to) cease, terminate, alter or reduce any relationship
with ICO in a manner that adversely affects any ICO entity or to divert any
business from ICO: (a) any person who was an employee of ICO
during the one-year period immediately preceding the termination of my service
provider relationship; or (b) any actual or prospective investor, venture
capital firm, or other financial institution of ICO. Further, I will
not directly or indirectly disclose the names, addresses, telephone numbers,
compensation, payment, or business arrangements between ICO and any person or
entity described herein.
4.
Noncompetition.
4.1 I acknowledge that ICO has
a genuine interest in, and considers valuable, its Confidential Information,
specifically including but not limited to trade secrets. Any business
opportunities related to ICO’s business that I learn of or obtain while a
service provider for ICO (whether or not during working hours) belong to ICO,
and I will pursue them only for ICO’s benefit.
4.2 In order to protect ICO’s
legitimate interest in its Confidential Information, I agree that during the
Noncompetition Period (as defined below) I will not, directly or indirectly, as an
officer, director, employee, consultant, owner, partner, or in any other
capacity solicit, perform, or provide, or attempt to perform or provide
Conflicting Services anywhere in the United States, nor will I assist another
person to solicit, perform or provide or attempt to perform or provide
Conflicting Services anywhere in the United States. For
purposes of this Agreement, the Noncompetition Period shall terminate upon the
termination of the Consulting Agreement unless (i) the Consulting Agreement
terminates because of my material breach of the Consulting Agreement, in which
case the Noncompetition Period shall terminate August 15, 2010, or (ii) the
Consulting Agreement terminates because I have elected to terminate the
Consulting Agreement effective prior to December 31, 2009 pursuant to Section
8(b) of that agreement, in which case the Noncompetition Period shall terminate
on December 31, 2009.
4.3 The parties agree that for
purposes of this Agreement, “Conflicting Services” means any product, service,
or process or the research and development thereof, of any person or
organization other than ICO that directly competes with a product, service, or
process of ICO with which I worked directly or indirectly during my service
provider relationship with the Company or about which I acquired Confidential
Information during my service provider relationship with ICO. Where
Conflicting Services is part of a larger business involving both Conflicting
Services and non-Conflicting Services, the restrictions in this Section 4 shall
apply only to that part of the business that involves the management, sales,
marketing, production, research or development of Conflicting
Services.
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5. Company
Materials. I will safeguard and return to ICO when my service
provider relationship ends, or sooner if ICO requests, all information,
documents, electronic media and other property in my care, custody or control
relating to my service provider relationship or ICO’s business, including
without limitation any documents or electronic media that contain ICO’s
Confidential Information.
6. Service Provider’s
Warranty. I represent and warrant that I have disclosed all
facts, if any, pertaining to restrictions on my ability to enter into this
Agreement. I further represent and warrant that I am not bound by any
agreements with third parties that would prevent me from lawfully performing all
duties requested of me by ICO. I understand that it is ICO’s policy
not to improperly obtain or use confidential, proprietary or trade secret
information that belongs to third parties, and agree not to use such third-party
confidential, proprietary or trade secret information for ICO’s
benefit.
7. No Guarantee of Continued
Service Provider
Relationship. I understand this Agreement is not a guarantee
of a continued service provider relationship, the duration of which is governed
by the terms of the Separation Agreement and Consulting Agreement dated as of
February 5, 2009.
8. Equitable
Relief. I acknowledge that the provisions of this Agreement
are essential to ICO and that a breach of any provisions of this Agreement can
create a severe and unfair business disadvantage that cannot be adequately
remedied by traditional legal recourse to damages. Therefore,
notwithstanding any limitations imposed by any Arbitration Agreement, ICO may
enforce this Agreement directly in any court having appropriate jurisdiction
and, in addition to any other remedy it may have at law, shall be entitled to
injunctive or other equitable relief to prevent or curtail any breach of this
Agreement.
9. Attorneys
Fees. If either party is required to take legal action
(regardless of whether an actual lawsuit is filed), in order to enforce the
terms of this Agreement against the other party, and substantially prevails in
such action, the prevailing party shall be responsible for paying the other
party’s reasonable costs and attorneys fees.
10. Assignment to Successor
Company. In the event that the ownership or corporate form of
ICO changes whether by acquisition of stock or assets and regardless of any
change in the form or name of the employing entity, this Agreement shall be
assignable by ICO to the entity that succeeds it without further notice to
me.
11.
Miscellaneous.
11.1
Non-waiver. Any delay or failure of either Party to insist
upon or enforce strict performance of any provision in this Agreement shall not
be construed as a waiver of its right to insist upon or enforce such provision
in the future.
11.2 Controlling
Law/Venue. This Agreement shall be governed by the laws of the
State of Virginia. Any legal proceeding shall be brought exclusively
in the courts in Fairfax County, Virginia which the parties agree is a
convenient forum.
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11.3
Severability. If any provision of this Agreement is held to be
unenforceable, the remaining provisions will nevertheless continue to be valid
and enforceable to the maximum extent permitted by law. The Agreement
shall not be construed against ICO by reason of the drafting or preparation
hereof.
11.4 Entire
Agreement. This Agreement, along with the Separation Agreement
and Consulting Agreement, is the final and complete expression of the
Parties’ agreement on these subjects, and replaces and supersedes all prior oral
or written agreements on these subjects. In the event of a conflict
between this Agreement and the Separation Agreement and/or Consulting Agreement,
this Agreement shall control.
11.5
Counterparts. This Agreement may be executed in any number of
counterparts, including any counterpart transmitted by electronic means such as
email or facsimile, all of which when taken together shall constitute one
agreement binding on each Party, notwithstanding that each Party is not a
signatory to the same counterpart.
12. Voluntary
Agreement. I acknowledge that I have carefully read this
Agreement, that I understand its terms, and that I have entered in to the
Agreement voluntarily. I further acknowledge that I have been given
the opportunity to discuss this Agreement with legal counsel and have taken
advantage of that opportunity to the extent I wish to do so.
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J.
XXXXXXX XXXXX
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ICO
GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED
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||
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/s/ J. Xxxxxxx Xxxxx
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/s/ Xxxxxxx X. Xxxxxxx
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|
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Signature
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Signature
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||
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Acting CEO; EVP &
CFO
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Print
Name
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Title
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2/5/09
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2-5-09
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Date
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Date
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17
Exhibit
A
Previous
Inventions
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TO:
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ICO
Global Communications (Holdings)
Limited
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FROM:
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J.
Xxxxxxx Xxxxx
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DATE:
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2/5/09
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SUBJECT:
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Previous
Inventions
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1. Except as listed in Section
2 below, the following is a complete list of all inventions or improvements
relevant to the subject matter of my employment by ICO Global Communications
(Holdings) Limited (the “Company”) that have been made
or conceived or first reduced to practice by me alone or jointly with others
prior to my engagement by the Company:
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ý
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No
inventions or improvements.
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|
o
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See
below:
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|
|
o
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Additional
sheets attached.
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2. Due to a prior
confidentiality agreement, I cannot complete the disclosure under Section 1
above with respect to inventions or improvements generally listed below, the
proprietary rights and duty of confidentiality with respect to which I owe to
the following party(ies):
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Invention
or Improvement
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Party(ies)
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Relationship
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|||
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1.
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|||||
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2.
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|||||
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3.
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|
o
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Additional
sheets attached.
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18
