EMPLOYMENT AGREEMENT
Exhibit 10.29
The parties to this Employment Agreement (the “Agreement") are Xxxxxx X. Xxxxxxxxxx (the
“Executive"), residing at 0 Xxxx Xxxx, Xxxxxxxx, XX 00000, and ORBCOMM Inc. (the “Company"), a
company organized under the laws of Delaware, with offices located at 0000 Xxxxxxx Xxxxxx, Xxxx
Xxx, XX 00000. Effective as of the Start Date (as defined below), this Agreement amends, restates
and supersedes in its entirety the Employment Agreement between the Executive and the Company dated
as of September 19, 2006 (the “2006 Agreement”), except as otherwise provided in Section 8(b)
below.
The Company desires to provide for the Executive’s continued employment by the Company, and
the Executive desires to accept such continued employment under the terms and conditions contained
herein, and the parties hereto have agreed as follows:
1. Employment. The Company shall employ the Executive, and the Executive shall
serve the Company, as Executive Vice President and Chief Financial Officer, with duties and
responsibilities compatible with that position. The Executive shall report to the Chief Executive
Officer of the Company. The Executive agrees to devote his full time, attention, skill, and energy
to fulfilling his duties and responsibilities hereunder. The Executive’s services shall be
performed principally at the Company’s headquarters or such other principal location in the eastern
United States as the Company shall determine.
2. Term of Employment. The Executive’s employment under this Agreement shall commence
on March 31, 2008 (the “Start Date") and shall continue until December 31, 2010, unless sooner
terminated pursuant to the provisions of Section 4 (the “Term”). The parties hereto may extend the
Term by a written agreement, signed by both parties, that specifically references this Agreement.
Upon the natural expiration of the Term (or any extended Term), (a) the Executive’s employment will
become “at-will” and will be terminable by either party hereto for any reason not prohibited by law
or for no reason, and with or without notice, (b) Section 4(f) below shall no longer be applicable
and (c) the post-employment restrictions on the Executive under Section 7(b) below will no longer
be applicable. Further, the failure of the parties to extend this Agreement or reach a new
agreement shall not be deemed as a “material breach” of this Agreement by the Executive.
3. Compensation. As full compensation for the services provided under this Agreement,
the Executive shall be entitled to receive the following compensation during the Term:
(a) Base Salary. The Executive shall be entitled to receive an annual base salary
(the “Base Salary”) of $283,500. Any Base Salary increase will be subject to the sole discretion
of the Company’s Board of Directors (the “Board”). Base Salary payments hereunder shall be made in
arrears in substantially equal installments (not less frequently than monthly) in accordance with
the Company’s customary payroll practices for its other executives, as those practices may exist
from time to time.
(b) Bonus. For each fiscal year during the Term, beginning with the 2008 calendar
year, the Executive shall also be eligible to receive a bonus (the “Bonus"), which shall be payable in cash or cash equivalent.
No Bonus will be paid unless the Company meets or exceeds 90% of the applicable performance
targets for that fiscal year (the “Targets”). If the Company achieves 90% of the Targets, the
Bonus will be equal to 18% of the Executive’s base salary then in effect. If the Company achieves
100% of the Targets, the Bonus will be equal to 80% of the Executive’s base salary then in effect.
If the Company achieves or exceeds 133% of the Targets, the Bonus will be equal to 140% of the
Executive’s base salary then in effect.
If the Company achieves between 90% and 100% of the Targets, the Bonus will be equal to a
percentage of the Executive’s base salary then in effect, with such percentage being between 18%
and 80%, calculated on a straight line basis with 18% corresponding to the Company’s achievement of
90% of the Targets and 80% corresponding to the Company’s achievement of 100% of the Targets.
If the Company achieves between 100% and 133% of the Targets, the Bonus will be equal to a
percentage of the Executive’s base salary then in effect, with such percentage being between 80%
and 140%, calculated on a straight line basis with 80% corresponding to the Company’s achievement
of 100% of the Targets and 140% corresponding to the Company’s achievement of 133% of the Targets.
The Targets will be set annually by the Board in its sole discretion and communicated to the
Executive in writing.
Any Bonus hereunder will be paid during the year following the fiscal year for which the Bonus
is being paid, provided that the Bonus will be paid no earlier than the rendering of the Company’s
audited financial statements for that fiscal year and in any case no later than the earlier of (i)
30 days after such rendering of the Company’s audited financial statements for that fiscal year and
(ii) June 30th of the year following that fiscal year.
In order to receive any Bonus payment for a fiscal year, the Executive must be actively
employed on the last day of the fiscal year for which the Bonus is being paid and not have had his
employment terminated with “cause” pursuant to Section 4(d) below prior to the payment of such
Bonus.
(c) Employee Benefits. Subject to the Executive satisfying and continuing to satisfy
any plan or program eligibility requirements and other terms and conditions of the plan or program,
the Executive shall be entitled to receive Company-paid medical and disability insurance,
Company-paid term life insurance (which shall provide for a death benefit payable to the
Executive’s beneficiary), Company-paid holiday and vacation time, and other Company-paid employee
benefits (collectively, “Employee Benefits"), at least equivalent to those provided to other senior
executives of the Company, subject to applicable policy limitations and maximums. In addition, the
Executive shall be entitled to participate as a senior executive in any profit sharing plan and/or pension plan generally provided for the executives of the Company or any
of its subsidiaries, provided that the Executive satisfies any eligibility requirements for
participation in any such plan. Notwithstanding the foregoing, the Company reserves the right to
amend, modify, or terminate, in its sole discretion and consistent with applicable law, any
Employee Benefit and any Employee Benefit plan, program or arrangement provided to employees in
general.
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(d) Equity Plan Participation. The Executive shall be entitled to participate in any
equity option plan or restricted equity plan established by the Company in which the Company’s
senior executives generally are permitted to participate. The terms and conditions of the
Executive’s participation in, and/or any award under, any such plan shall be in accordance with the
applicable controlling plan document and/or award agreement. The number and/or price of any
equity-based award granted to the Executive shall be determined by the Board. Notwithstanding the
foregoing, the Board will grant to the Executive an award consisting of 250,000 stock appreciation
rights, the terms of such award to be set forth in separate written agreements.
(e) Expenses. The Company shall reimburse the Executive for all reasonable expenses
incurred by him in connection with the performance of his duties under this Agreement, upon his
presentation of appropriate vouchers and/or documentation covering such expenses. Without limiting
the generality of the foregoing, the Company shall reimburse the Executive for all transportation,
lodging, food, and other expenses incurred by him in connection with traveling on Company business.
(f) Automobile. The Company shall reimburse the Executive for up to $800 per month
for automobile expenses, including lease, insurance, and maintenance costs.
(g) Withholdings. All payments made under this Section 3, or any other provision of
this Agreement, shall be subject to any and all federal, state, and local taxes and other
withholdings to the extent required by applicable law.
4. Termination of Employment.
(a) Disability. If the Executive shall fail or be unable to perform his essential
duties under this Agreement for any reason, including a physical or mental disability, with or
without reasonable accommodation, for one hundred eighty (180) calendar days during any twelve (12)
month period or for one hundred (120) consecutive calendar days, then the Company may, by notice to
the Executive, terminate his employment under this Agreement as of the date of the notice. Any
such termination shall be made only in accordance with applicable law. Nothing set forth in this
Section 4(a) shall be construed as a waiver by the Executive for seeking an extended leave of
absence in excess of said time-frame mentioned above, as a reasonable accommodation under
applicable state and/or federal anti-discrimination laws (or the Company’s obligation to provide
such). Further, nothing contained in this Section 4(a) is to be construed as an admission that any such leave in excess of the said time frame mentioned above is not
reasonable as an accommodation. This Section is not to be construed as a waiver of the Executive’s
right to pursue legal action for any discharge that he deems improper based on a legally protected
characteristic (i.e., disability and/or handicap).
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(b) Death. The Executive’s employment under this Agreement shall terminate
automatically upon his death. However, any and all rights that may exist under this Agreement
and/or through any other pertinent plan documents, with respect to vested benefits and/or accrued
monetary amounts owed, shall be transitioned, in accordance with the law, to the Executive’s
beneficiaries.
(c) Material Change in the Executive’s Status. Subject to the notice and cure
period set forth in this Section 4(c), the Executive may elect to terminate his employment
following (i) a material adverse change in the Executive’s status, title, position, or scope of
authority or responsibilities (including reporting responsibilities) (ii) the assignment to the
Executive of any duties or responsibilities which are materially inconsistent with his status,
title, position, authorities, or responsibilities, or (iii) any removal of the Executive from, or
failure to reappoint or reelect him to, such position; except in connection with the termination of
his employment for “cause” (as defined below). Upon the occurrence of any such material adverse
change, but no later than sixty (60) days following the occurrence of any such material adverse
change, the Executive shall provide written notice to the Company, reasonably detailing the
material adverse change, and the Company shall have thirty (30) days from receipt of such written
notice to cure any such material adverse change. If the Company fails to cure such material
adverse change within the thirty (30) day cure period, then the Executive may elect to terminate
his employment under this Agreement within seven (7) days following the expiration of such cure
period.
(d) Termination by the Company. The Company shall have the right, exercisable at any
time in its sole discretion, to terminate the employment of the Executive for any reason whatsoever
with or without “cause” (as defined below). However, the Executive’s employment shall not be
deemed to have been terminated with “cause” unless he shall have received written notice from the
Board at or prior to the termination of employment advising him of the specific acts or omissions
alleged to constitute “cause” and, in the case of those acts or omissions that are reasonably
capable of being corrected, those acts or omissions continue uncorrected after he shall have had a
reasonable opportunity (not to exceed fifteen (15) calendar days) to correct them.
As used in this Agreement, termination with “cause” shall mean only the Executive’s
involuntary termination for reason of (i) the Executive’s breach of a fiduciary duty of loyalty
owed to the Company or any of its subsidiaries, (ii) the Executive’s conviction of a crime or plea
of guilty or no contest to a crime, (iii) the Executive’s gross negligence related to the
performance of his services under this Agreement, (iv) the Executive’s willful misconduct,
including without limitation, embezzlement, (v) the Executive’s material breach of this Agreement, or (vi) conduct by the Executive beyond the scope of his authority as an officer
and employee of the Company, which conduct gives rise to a hearing before any governmental
department or agency seeking termination or revocation of any governmental license.
Notwithstanding the foregoing, the Company’s failure to achieve any performance level or objective
shall not, by itself, constitute “cause” under this Agreement, even if the achievement of such
performance level or objective is contained in a directive of the Board.
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(e) Termination by the Executive. The Executive shall have the right to terminate his
employment with the Company, provided that he provides the Company with at least one (1) month of
advance written notice of such decision. Upon the receipt of such notice from the Executive, the
Company may withdraw any and all duties from the Executive and exclude him from the Company’s
premises during the notice period, during which time the Executive shall continue to paid his Base
Salary and continue to be eligible for employee benefits for the remainder of the one-month notice
period. The Executive’s employment will be terminated formally upon the expiration of such
one-month notice period.
(f) Severance. If the Company shall terminate the Executive’s employment without
“cause” pursuant to Section 4(d) above during the Term or the Executive terminates his employment
under Section 4(c) due to a material change in status during the Term, then, upon the Executive’s
execution of the Release attached hereto as Exhibit A (or in a substantially similar form as the
Company deems necessary in order to comply with then applicable law), the Executive shall be
entitled to continue to receive, as severance payments (such severance payments being the
Executive’s sole entitlement upon any such termination), (i) his then Base Salary for one (1) year
immediately following such termination, payable in regular installments consistent with its payroll
practices in effect from time to time, and (ii) to the extent he is then a participant in the
Company’s health insurance plan and eligible for benefits under plan terms, to continued health
insurance coverage for one (1) year immediately following such termination at then existing
employee contribution rates, which the Executive shall pay (such continued coverage to run
concurrently with any continued coverage obligation under the federal law known as COBRA or any
state equivalent). Subject only to the Executive’s delivery of an executed and effective Release,
the Company’s obligation under this Section 4(f) shall be absolute and unconditional, and the
Executive shall be entitled to such severance benefits regardless of the amount of compensation and
benefits the Executive may earn or be entitled to with respect to any other employment he may
obtain during the period for which severance payments are payable.
If the Executive’s employment with the Company is terminated pursuant to Sections 4(a) or 4(b)
above, if the Company terminates the Executive’s employment with “cause” pursuant to Section 4(d)
above, if the Executive terminates his employment pursuant to Section 4(e) above, or if the
Executive’s employment is terminated for any reason following the expiration of the Term, then the
Executive shall not be entitled to any further payments under this Agreement, including Base
Salary, Bonus, Employee Benefits, or severance, except as otherwise required by applicable law,
including the payment of any amounts owed to the Executive and any obligation that the Company may have to offer the Executive continued benefit plan
participation.
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To the extent that any amount payable under this Agreement constitutes an amount payable under
a “nonqualified deferred compensation plan” (as defined in Section 409A of the Internal Revenue
Code (hereinafter, “Section 409A”)) following a “separation from service” (as defined in Section
409A), including any amount payable under this Section 4, then, notwithstanding any other provision
in this Agreement to the contrary, such payment will not be made to the Executive until the day
after the date that is six months following his “separation from service,” but only if he is then
deemed by the Company, in accordance with any relevant procedures that it may establish, to be a
“specified employee” under Code Section 409A at the time he “separates from service.” This
paragraph will not be applicable after Executive’s death.
5. Change of Control. If a “Change of Control” occurs, then the Executive shall be
entitled to severance upon the termination of his employment as if his employment were terminated
by the Company without “cause,” unless such successor or transferee continues the Executive’s
employment on substantially equivalent terms. Any such severance under this Section 5 will be
provided to the Executive in accordance with Section 4(f), except that (i) the length of the
severance period during which the Executive receives continued Base Salary payments and coverage
under the Company’s health insurance plan will be the longer of the one-year period immediately
following the employment termination date or the remainder of the Term at the time the employment
termination occurs, and (ii) in no event will the Executive’s continued coverage under the
Company’s health insurance plan under Section 4(f) continue beyond the 18-month period following
the employment termination date. This Agreement shall be binding on any and all successors and/or
assigns of the Company.
“Change of Control” means (a) the Company’s merger or consolidation with another corporation
or entity, (b) the Company’s transfer of all or substantially all of its assets to another person,
corporation, or other entity, or (c) a sale of the Company’s stock in a single transaction or
series of related transactions that results in the holders of the outstanding voting power of the
Company immediately prior to such transaction or series of transactions owning less than a majority
of the outstanding voting securities for the election of directors of the surviving company or
entity immediately following such transaction or series of transactions (other than any registered,
underwritten public offering by the Company of the Company’s stock or pursuant to any stock-based
compensation plan of the Company).
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6. Arbitration. Except as provided in Section 7(h) below, any dispute or controversy
between the parties hereto, whether during the Term or thereafter, including without limitation,
any and all matters relating to this Agreement, the Executive’s employment with the Company and the
cessation thereof, shall be settled by arbitration administered by the American Arbitration
Association (“AAA”) in New York, New York pursuant to the AAA’s National Rules for the Resolution
of Employment Disputes (or their equivalent), which arbitration shall be confidential, final, and
binding to the fullest extent permitted by law. The parties agree to waive
their right to a trial by jury and agree that they will not make a demand, request or motion
for a trial by jury or court. This agreement to arbitrate shall be binding upon the heirs,
successors, and assigns and any trustee, receiver, or executor of each party. A party shall
initiate the arbitration process by delivering a written notice of such party’s intention to
arbitrate to the other party at the address set forth above and by filing the appropriate notice
with the AAA. The parties shall select an arbitrator by mutual agreement, within thirty (30) days
after the written notice of intention to arbitrate is received, from a list of eligible arbitrators
received from the AAA. If the parties fail to agree on an arbitrator, the AAA Administrator or
his/her delegate shall select an arbitrator, who is a member of the AAA’s Employment Dispute
Resolution Roster. The arbitrator shall have the authority to resolve all issues in dispute,
including the arbitrator’s own jurisdiction, and to award compensatory remedies and other remedies
permitted by law. The arbitrator shall decide the matters in dispute in accordance with the
governing law provisions of this Agreement, except that the parties agree that this agreement to
arbitrate shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. The award of the
arbitrator shall be final and shall be the sole and exclusive remedy between the parties regarding
any claims, counterclaims, issues, or accountings (except as provide in Section 7(h)). The
arbitrator in any such dispute shall have discretion to award attorneys’ fees and costs as part of
any resolution of a claim arising under this Agreement. Except as otherwise provided by the
arbitrator in accordance with applicable law, each party hereto shall be responsible for paying its
own attorneys’ fees and costs incurred in connection with any dispute between the parties. To the
extent inconsistent with the form of arbitration agreement that the Company’s employees generally
are required to enter into, including the Executive, this arbitration provision shall control.
Otherwise, to the extent compatible, effect shall be given to both this arbitration provision and
the Company’s form of arbitration agreement that the Executive has executed or will be required to
execute.
7. Obligations of the Executive.
(a) Protectable Interests of the Company. The Executive acknowledges that he has
played and will continue to play an important role in establishing the goodwill of the Company and
its related entities, including relationships with clients, employees, and suppliers. The
Executive further acknowledges that over the course of his employment with the Company, he has and
will continue to (i) develop special relationships with clients, employees, and/or suppliers,
and/or (ii) be privy to Confidential Information (as defined below). As such, the Executive agrees
to the restrictions below in order to protect such interests on behalf of the Company, which
restrictions the parties hereto agree to be reasonable and necessary to protect such interests.
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(b) Non-Competition. During the Executive’s employment and, provided that the
Executive’s employment is terminated before the expiration of the Term (regardless of the reason
for such termination and who the terminating party is), then also for the one (1) year period
immediately thereafter, the Executive shall not, anywhere in the world, whether directly or
indirectly, for himself or for any third party, (i) engage in any business activity, (ii) provide
professional services to another person or entity (whether as an employee, consultant, or
otherwise), or (iii) become a partner, member, principal, or stockholder having a 10% or
greater interest in any entity, but in each such case, only to the extent that such activity,
person or entity is in competition with the Business. For purposes of this Section 7(b) and
Section 7(c) below, “Business” shall mean the business of offering wireless data communication
services, including for the purpose of tracking and/or monitoring fixed or mobile assets, the
business of designing, manufacturing or distributing modems that operate on such services, or any
other business in which the Company is materially engaged during the six (6) month period
immediately preceding the Executive’s termination of employment. The Executive acknowledges and
understands that, due to the global nature of the Company’s business and the technological
advancements in electronic communications around the world, any geographic restriction of the
Executive’s obligation under this Section 7(b) would be inappropriate and counter to the
protections sought by the Company hereunder.
(c) Non-Solicitation. During the Executive’s employment and for the two (2) year
period immediately thereafter, the Executive shall not, anywhere in the world, whether directly or
indirectly, for himself or for any third party: (i) solicit any business or contracts, or enter
into any business or contract, directly or indirectly, with any suppliers, licensees, customers, or
partners of the Company that (A) was a supplier, licensee, customer, or partner of the Company at,
or within six (6) months prior to, the termination of Executive’s employment, or (B) was a
prospective supplier, licensee, customer, or partner of the Business at the time of the Executive’s
termination of employment, and in either case, for purposes of engaging in an activity that is in
competition with the Business; or (ii) solicit or recruit, directly or indirectly, any of the
Company’s or its subsidiaries’ employees, or any individuals who were employed by the Company’s or
its subsidiaries’ within three (3) months prior to the termination of the Executive’s employment,
for employment or engagement (whether as an employee, consultant, or otherwise) with a person or
entity involved in marketing or selling products or services competitive with the Business. The
Executive acknowledges and understands that, due to the global nature of the Company’s business and
the technological advancements in electronic communications around the world, any geographic
restriction of the Executive’s obligation under this Section 7(c) would be inappropriate and
counter to the protections sought by the Company hereunder.
Notwithstanding prior paragraphs (b) and (c), the following shall not be deemed to be a
violation of the Executive’s non-competition and non-solicitation covenants: (i) the Executive
becoming employed by an entity that is a corporate affiliate of the Company; and (ii) the Executive
holding a minority position (less than 10% interest) in any private investment or making any
investment in public securities.
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(d) Confidential Information. The Executive acknowledges that during the course of
his employment with the Company, he has had and will continue to have access to information about
the Company, and its clients and suppliers, that is confidential and/or proprietary in nature, and
that belongs to the Company. As such, at all times, both during the his employment and thereafter,
the Executive will hold in the strictest confidence, and not use or
attempt to use except for the benefit of the Company, and not disclose to any other person or
entity (without the prior written authorization of the Company) any Confidential Information (as
defined below). Notwithstanding anything contained in this Section 7(d), the Executive will be
permitted to disclose any Confidential Information to the extent required by validly issued legal
process or court order, provided that the Executive notifies the Company immediately of any such
legal process or court order in an effort to allow the Company to challenge such legal process or
court order, if the Company so elects, prior to the Executive’s disclosure of any Confidential
Information.
For purposes of this Agreement, “Confidential Information” means any confidential or
proprietary information which belongs to the Company, or any of its clients or suppliers, including
without limitation, technical data, market data, trade secrets, trademarks, service marks,
copyrights, other intellectual property, know-how, research, business plans, product information,
projects, services, client lists and information, client preferences, client transactions, supplier
lists and information, supplier rates, software, hardware, technology, inventions, developments,
processes, formulas, designs, drawings, marketing methods and strategies, pricing strategies, sales
methods, financial information, revenue figures, account information, credit information, financing
arrangements, and other information disclosed to the Executive by the Company or otherwise obtained
by the Executive during the course of his employment, directly or indirectly, and whether in
writing, orally, or by electronic records, drawings, pictures, or inspection of tangible property.
“Confidential Information” does not include any of the foregoing information which has entered the
public domain other than by a breach of this Agreement or the breach of any other obligation to
maintain confidentiality of which the Executive is aware.
(e) Return of Company Property. Upon the termination of the Executive’s employment
with the Company (whether upon the expiration of the Term or otherwise), or at any time during such
employment upon request by the Company, the Executive will promptly deliver to the Company and not
keep in his possession, recreate, or deliver to any other person or entity, any and all property
which belongs to the Company, or which belongs to any other third party and is in the Executive’s
possession as a result of his employment with the Company, including without limitation, computer
hardware and software, palm pilots, pagers, cell phones, other electronic equipment, records, data,
client lists and information, supplier lists and information, notes, reports, correspondence,
financial information, account information, product information, files, and other documents and
information, including any and all copies of the foregoing.
(f) Ownership of Property. The Executive acknowledges that all inventions,
innovations, improvements, developments, methods, processes, programs, designs, analyses, drawings,
reports and all similar or related information (whether or not patentable) that relate to the
Company’s or any of its affiliates’ actual or anticipated business, research, and development, or
existing or future products or services, and that are conceived, developed, contributed to, made,
or reduced to practice by Executive (either solely or jointly with others) while engaged by the
Company or any of its affiliates (including any of the foregoing that constitutes any Confidential Information) (“Work Product") belong to the Company or such affiliate, and the
Executive hereby assigns, and agrees to assign, all of the above Work Product to the Company or
such Affiliate.
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(g) Judicial Modification. The Executive acknowledges that it is the intent of the
parties hereto that the restrictions contained or referenced in this Section 7 be enforced to the
fullest extent permissible under the laws of the State of New Jersey. If any of the restrictions
contained or referenced in this Section 7 is for any reason held by a court to be excessively broad
as to duration, activity, geographical scope, or subject, then such restriction shall be construed
or judicially modified so as to thereafter be limited or reduced to the extent required to be
enforceable in accordance with the laws of the State of New Jersey (or other applicable law in the
event that New Jersey law is not being applied).
(h) Equitable Relief. The Executive acknowledges that the remedy at law for his
breach of this Section 7 will be inadequate, and that the damages flowing from such breach will not
be readily susceptible to being measured in monetary terms. Accordingly, upon a violation of any
part of this Section 7, the Company shall be entitled to immediate injunctive relief (or other
equitable relief) from any court with proper jurisdiction and may obtain a temporary order
restraining any further violation. No bond or other security shall be required in obtaining such
equitable relief, and the Executive hereby consents to the issuance of such equitable relief.
Nothing in this Section 7(h) shall be deemed to limit the Company’s remedies at law or in equity
for any breach by the Executive of any of the parts of this Section 7 which may be pursued or
availed of by the Company.
8. Miscellaneous.
(a) Notices. Any notice or other communication under this Agreement shall be in
writing and shall be considered given when delivered personally or five days after mailed by
registered mail, return receipt requested, to the Executive and the Company at their respective
addresses set forth above (or at such other address as a party may specify by notice to the other).
(b) Entire Agreement; Amendment. This Agreement contains a complete statement of all
of the arrangements between the Executive and the Company with respect to the employment of the
Executive by the Company and the Executive’s compensation for such employment, and supersedes all
previous agreements, arrangements and understandings, written or oral, relating thereto. Effective
as of the Start Date, this Agreement supersedes and replaces in its entirety the 2006 Agreement,
except for any obligations of the Executive under the 2006 Agreement applicable to the time period
before the Start Date (such as the Executive’s obligation to keep certain information
confidential).
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This Agreement may not be amended except by a written agreement signed by the Company and the
Executive. Notwithstanding the foregoing, the parties hereto acknowledge that the requirements of
Code Section 409A are still being developed and interpreted by government agencies, that certain issues under Code Section 409A remain unclear at this time, and that
the parties hereto have made a good faith effort to comply with current guidance under Code Section
409A. Notwithstanding anything in this Agreement to the contrary, in the event that amendments to
this Agreement are necessary in order to comply with future guidance or interpretations under Code
Section 409A, including amendments necessary to ensure that compensation will not be subject to
Code Section 409A, the Executive agrees that the Company shall be permitted to make such
amendments, on a prospective and/or retroactive basis, in its sole discretion.
(c) Severability. In the event that any provision of this Agreement, or the
application of any provision to the Executive or the Company, is held to be unlawful or
unenforceable by any court or arbitrator, then the remaining portions of this Agreement shall
remain in full force and effect and shall not be invalidated or impaired in any manner.
(d) Waiver. No waiver by any party hereto of any breach of any term or covenant in
this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to
be or construed as a further or continuing waiver of any such breach, or a waiver of any other term
or covenant contained in this Agreement.
(e) Governing Law. This Agreement shall be governed by and construed in accordance
with the law of the State of New Jersey applicable to agreements made and to be made performed in
New Jersey.
(f) Legal Costs. If either party commences legal action to enforce any of its or his
rights under this Agreement and substantially prevails (as determined by the trier of fact) in that
action, then the non-prevailing party shall reimburse the prevailing party for the legal fees and
other costs and expenses incurred by the prevailing party in connection with the action, provided
that (a) any amount reimbursed to the Executive in any one year will not affect the amount
reimbursed to the Executive in any other year, (b) any amount reimbursed to the Executive may be
made no later than the end of the year following the year in which the underlying expense is
incurred, and (c) this right to reimbursement is not subject to liquidation by the Executive for
cash or exchange by the Executive for any other benefit. The Executive’s right to reimbursement
set forth in the prior sentence is limited to expenses incurred by him during his employment with
the Company and during the five-year period immediately thereafter. No damages or other amounts
owing to the Executive hereunder shall be reduced by any earnings from any subsequent employment.
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IN WITNESS WHEREOF, the parties hereto have executed this document as of the 21st day of
February, 2008 to be effective as of the Start Date.
| ORBCOMM Inc. | ||||||
By:
|
/s/ Xxxx X.Xxxxxxxxx | /s/ Xxxxxx X. Xxxxxxxxxx | ||||
Name:
|
Xxxx X. Xxxxxxxxx | Xxxxxx X. Xxxxxxxxxx | ||||
Title:
|
Chief Executive Officer | |||||
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EXHIBIT A — GENERAL RELEASE
FOR AND IN CONSIDERATION OF the employment agreement to which this General Release is
attached, I, Xxxxxx X. Xxxxxxxxxx, agree, on behalf of myself, my heirs, executors, administrators,
and assigns, to release and discharge ORBCOMM Inc. (the “Company”), and its current and former
officers, directors, employees, agents, owners, subsidiaries, divisions, affiliates, parents,
successors, and assigns (the “Released Parties”) from any and all manner of actions and causes of
action, suits, debts, dues, accounts, bonds, covenants, contracts, agreements, judgments, charges,
claims, and demands whatsoever (“Losses”) which I, my heirs, executors, administrators, and assigns
have, or may hereafter have, against the Released Parties or any of them arising out of or by
reason of any cause, matter, or thing whatsoever from the beginning of the world to the date
hereof, including without limitation, my employment agreement, my employment by the Company and the
cessation thereof, and all matters arising under any federal, state, or local statute, rule, or
regulation, or principle of contract law or common law, including but not limited to, the Worker
Adjustment and Retraining Notification Act of 1988, as amended, 29 U.S.C. §§ 2101
et seq., the Family and Medical Leave Act of 1993, as amended, 29
U.S.C. §§ 2601 et seq., Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. §§ 621 et seq. (the “ADEA”), the
Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101 et
seq., the Employee Retirement Income Security Act of 1974, as amended, 29
U.S.C. §§ 1001 et seq., the Virginia Human Rights Act, as amended,
Va. Code Xxx. §§ 2.1-714 et seq., the Virginia Persons with Disabilities Act,
as amended, Va. Code Xxx. §§ 51.5-1 et seq., the New Jersey Law
Against Discrimination, as amended, N.J. Stat. Xxx. §§ 10:5-1 et
seq., and any other equivalent federal, state, or local statute; provided that I do not
release or discharge the Released Parties (1) from any Losses arising under the ADEA which arise
after the date on which I execute this General Release or (2) from any rights that I may have to be
indemnified by the Company for any acts or omissions by me made in the course of my role as an
officer and employee of the Company. It is understood that nothing in this General Release is to
be construed as an admission on behalf of the Released Parties of any wrongdoing with respect to
me, any such wrongdoing being expressly denied.
I represent and warrant that I fully understand the terms of this General Release, that I have
had the benefit of advice of counsel or have knowingly waived such advice, and that I knowingly and
voluntarily, of my own free will, without any duress, being fully informed, and after due
deliberation, accepts its terms and sign the same as my own free act. I understand that as a
result of executing this General Release, I will not have the right to assert that the Company
violated any of my rights in connection with my employment agreement, my employment, or with the
termination of such employment.
I affirm that I have not filed, and agree, to the maximum extent permitted by law, not to
initiate or cause to be initiated on my behalf, any complaint, charge, claim, or proceeding against
the Released Parties before any federal, state, or local agency, court, or other body relating to
my employment agreement, my employment, or the cessation thereof, and agree not to voluntarily participate in such a proceeding. However, nothing in this General Release shall preclude or
prevent me from filing a claim that challenges the validity of this General Release solely with
respect to my waiver of any Losses arising under the ADEA.
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I acknowledge that I have twenty-one (21) in which to consider whether to execute this General
Release. I understand that I may waive such 21-day consideration period. I understand that upon
my execution of this General Release, I will have seven (7) days after such execution in which I
may revoke my execution of this General Release. In the event of revocation, I must present
written notice of such revocation to the General Counsel at the Company by delivering such written
notice to him at .
If seven (7) days pass without receipt of such written notice of revocation, this General
Release shall become binding and effective on the eighth day (the “Release Effective Date”).
This General Release shall be governed by the laws of the State of New Jersey without giving
effect to its conflict of laws principles.
Xxxxxx X. Xxxxxxxxxx
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STATE OF
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COUNTY OF
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On the
_____ day of in the year
200__, before me, the undersigned, personally appeared
XXXXXX X. XXXXXXXXXX, personally known to me or proved
to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within
instrument, and acknowledged to me that he executed
the same in his capacity, and that by his signature on
the instrument he executed such instrument, and that
such individual made such appearance before the
undersigned.
| Notary Public |
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