June 22, 2009 Mr. Craig Jorgens Orinda, CA 94563 c/o ICO Global Communications (Holdings) Limited 11700 Plaza America Drive, Suite 1010 Reston, VA 20190 Re: Separation Agreement Dear Craig:
Exhibit
10.1
June 22,
2009
Xx. Xxxxx
Xxxxxxx
000
Xxxxxxxx Xxxxx
Xxxxxx,
XX 00000
c/o ICO
Global Communications (Holdings) Limited
00000
Xxxxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx,
XX 00000
Dear
Xxxxx:
This
letter sets forth the substance of the agreement (the “Agreement”) between you
and ICO Global Communications (Holdings) Limited (“ICO Global,” and 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
June 30, 2009 (the “Separation Date”). The Letter Agreement between you and the
Company dated April 23, 2006, as amended on December 30, 2008, will be
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 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
are entitled to these payments by law.
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 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 June 30, 2009 pay
period. You will receive information by mail concerning 401(k) plan
rollover procedures. All participation in 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.
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 June 22, 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. Cooperation and
Assistance. You agree that you will not voluntarily provide
assistance, information or advice, directly or indirectly (including through
agents or attorneys), to any person or entity in connection with any claim or
cause of action of any kind brought against the Company, nor shall you induce or
encourage any person or entity to bring such claims. However, it will
not violate this Agreement if you testify truthfully when required to do so by a
valid subpoena or under similar compulsion of law. Further, you agree to
voluntarily cooperate with the Company if you have knowledge of facts relevant
to any threatened or pending litigation against the Company by making yourself
reasonably available without further compensation for interviews with the
Company’s counsel, for preparing for and providing deposition testimony, and for
preparing for and providing trial testimony.
12. Release of
Claims. In
exchange for the Company’s agreement to enter into the Consulting Agreement, to
which you would otherwise not be entitled, and except as otherwise set forth in
this Agreement, you hereby
generally and completely
release the Company and its directors, officers, employees, shareholders,
partners, agents, attorneys, predecessors, successors, parent and subsidiary
entities, insurers, affiliates, and assigns from any and all claims, liabilities
and obligations, both known and unknown, that arise out of or are in any way related to
events, acts, conduct, or omissions occurring at any time prior to and including
the date you sign this Agreement. This general release includes, but
is not limited to: (a) all claims arising out of or in any way related to your
employment with the Company or the termination of that employment, including by
not limited to any claims relating to severance or any other benefit provided
under the employment letter between you and the Company dated April 23, 2006, as
amended on December 30, 2008; (b) all claims related to your compensation or
benefits from the Company, including salary, bonuses, commissions, vacation pay,
expense reimbursements, severance pay, fringe benefits, stock, stock options, or
any other ownership interests in the Company; (c) all claims for breach of
contract, wrongful termination, and breach of the implied covenant of good faith
and fair dealing; (d) all tort claims, including claims for fraud,
defamation, emotional distress, and discharge in violation of public policy; and
(e) all federal, state, and local statutory claims, including claims for
discrimination, harassment, retaliation, attorneys’ fees, or other claims
arising under the federal Civil Rights Act of 1964 (as amended), the federal
Americans with Disabilities Act of 1990, the federal Age Discrimination in
Employment Act of 1967 (as amended) (the “ADEA”), the California Labor Code (as
amended), the California Family Rights Act, and the California Fair Employment
and Housing Act (as amended). Notwithstanding the foregoing, you are
not releasing the Company
hereby from any obligation to indemnify you pursuant to the Articles and Bylaws
of the Company, any valid fully executed indemnification agreement with the
Company, applicable law, or applicable directors and officers liability
insurance. You
represent that you have no lawsuits, claims or actions pending in your name, or
on behalf of any other person or entity, against the Company or any other person
or entity subject to the release granted in this paragraph.
13. Our Release. Except
as otherwise set forth in this Agreement, and only to the extent the ICO Global
has actual knowledge of the Claim (as defined below) as of the Separation Date,
ICO Global (and not DBSD North America, Inc. or any of its subsidiaries) 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
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
or to affect in any way the ability of the Company to address the prior
overfunding of your Company 401(k) account (including by withdrawing funds from
your Company 401(k) account).
14. ADEA Waiver. You acknowledge that you
are knowingly and voluntarily waiving and releasing any rights you have under
the ADEA, and that the consideration given for the waiver and releases you have
given in this Agreement is in addition to anything of value to which you were
already entitled. You further acknowledge that you have been advised,
as required by the ADEA, that: (a) your waiver and release does not
apply to any rights or claims that arise after the date you sign this Agreement;
(b) you should consult with an attorney prior to signing this Agreement
(although you may choose voluntarily not to do so); (c) you have twenty-one (21)
days to consider this Agreement (although you may choose voluntarily to sign it
sooner); (d) you have seven (7) days following the date you sign this Agreement
to revoke this Agreement (in a written revocation sent to me); and (e) this
Agreement will not be effective until the date upon which the revocation period
has expired, which will be the eighth day after you sign this Agreement provided
that you do not revoke it (the “Effective Date”).
15. Section 1542
Waiver. In giving the release herein, which includes claims
which may be unknown to you at present, you acknowledge that you have read and
understand Section 1542 of the California Civil Code, which reads as
follows:
“A
general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which
if known by him or her must have materially affected his or her settlement with
the debtor.”
You
hereby expressly waive and relinquish all rights and benefits under that section
and any law of any other jurisdiction of similar effect with respect to your
release of claims herein, including but not limited to your release of unknown
claims.
16. Representations. You
hereby represent that you have been paid all compensation owed and for all hours
worked, have received all the leave and leave benefits and protections for which
you are eligible pursuant to the Family and Medical Leave Act, the California
Family Rights Act, or otherwise, and have not suffered any on-the-job injury for
which you have not already filed a workers’ compensation claim. However, you and
the Company acknowledge that there may be a disability and or other insurance
claim filed before you leave employment of the Company for a situation that is
currently under investigation regarding your eye.
17. 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.
18. 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, 11, 12, 13, 14 and 15 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.
19. Arbitration. To ensure
the rapid and economical resolution of any and all disputes that arise in
connection with this Agreement, you and the Company agree that any and all
disputes, claims, or causes of action, in law or equity, arising from or
relating to the enforcement or interpretation of this Agreement (collectively,
“Claims”), shall be resolved to the fullest extent permitted by law exclusively
first, by mediation using a mediator mutually selected from Judicial Arbitration
and Mediation Services, Inc. (“JAMS”), and if not thereby resolved, by final,
binding, and (to the extent permitted by law) confidential arbitration in
Oakland, California conducted by JAMS or its successors, under the then
applicable JAMS rules. Notwithstanding the above,
excluded from this provision are any claims that by law are not subject to
arbitration. The arbitrator shall: (1) have the authority
to compel adequate discovery for the resolution of all Claims and to award such
relief as would otherwise be permitted by law; and (2) issue a written
arbitration decision including the arbitrator’s essential findings and
conclusions and a statement of the award. Judgment on the arbitration
award may be entered upon the application of either party by any court of
competent jurisdiction. The Company shall pay all of the arbitrator’s
fees in excess of the amount of those administrative fees you would have been
required to pay if the Claims were asserted in a court of law. You and the Company acknowledge that,
by agreeing to this arbitration procedure, both you and the Company waive the
right to resolve any Claims through a trial by jury or judge or by
administrative proceeding. Nothing in this Agreement is intended to
prevent you or the Company from obtaining injunctive relief in court if the
award to which such party might obtain in arbitration may be rendered
ineffectual without provisional relief.
20. 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 California as applied to
contracts made and to be performed entirely within California, 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.
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 X.
Xxxxxxx
Xxxxxxx
Xxxxxxx
Acting
Chief Executive Officer,
Chief
Financial Officer
Agreed
to and Accepted:
/s/ Xxxxx
Xxxxxxx
Xxxxx
Xxxxxxx
CONSIDERATION
PERIOD
I, Xxxxx
Xxxxxxx, understand that I have the right to take at least 21 days to consider
whether to sign this Agreement, which I received in final form on June 22,
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:
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/s/
Xxxxx Xxxxxxx
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Employee
Signature
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6/24/09
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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 June 22, 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 Xxxxx Xxxxxxx, a
resident of California (“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 Acting Chief Executive Officer or his successor
(“CEO”) (“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. Nothing in this
Consulting Agreement restricts Consultant from being employed by another party
at the same time as fulfilling the obligations of this Agreement.
2. Contact and Key
Personnel
Consultant’s contact person at ICO
shall be ICO’s CEO. 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 beginning July 1,
2009, ICO agrees to compensate Consultant as follows:
(a) ICO
shall pay Consultant $49,400 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. Consultant shall have 12
months following the expiration of this Consulting Agreement to exercise any
vested options.
(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 email 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.
(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 June 22, 2009, and
attached hereto as Exhibit B. Nothing in this Consulting Agreement
shall modify or abrogate the terms of the ICO 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
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.
8. Term and
Termination
(a) Unless
previously terminated as set forth below, this Consulting Agreement shall
terminate on February 28, 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.
(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 California, 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
To ensure
the rapid and economical resolution of any and all disputes that arise in
connection with this Agreement, you and the Company agree that any and all
disputes, claims, or causes of action, in law or equity, arising from or
relating to the enforcement or interpretation of this Agreement (collectively,
“Claims”), shall be resolved to the fullest extent permitted by law exclusively
first, by mediation using a mediator mutually selected from Judicial Arbitration
and Mediation Services, Inc. (“JAMS”), and if not thereby resolved, by final,
binding, and (to the extent permitted by law) confidential arbitration in
Oakland, California conducted by JAMS or its successors, under the then
applicable JAMS rules. Notwithstanding the above, excluded from this
provision are any claims that by law are not subject to
arbitration. The arbitrator shall: (1) have the authority
to compel adequate discovery for the resolution of all Claims and to award such
relief as would otherwise be permitted by law; and (2) issue a written
arbitration decision including the arbitrator’s essential findings and
conclusions and a statement of the award. Judgment on the arbitration award may
be entered upon the application of either party by any court of competent
jurisdiction. The Company shall pay all of the arbitrator’s fees in
excess of the amount of those administrative fees you would have been required
to pay if the Claims were asserted in a court of law. You and the Company acknowledge that,
by agreeing to this arbitration procedure, both you and the Company waive the
right to resolve any Claims through a trial by jury or judge or by
administrative proceeding. Nothing in this Agreement is intended to
prevent you or the Company from obtaining injunctive relief in court if the
award to which such party might obtain in arbitration may be rendered
ineffectual without provisional relief.
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.
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 Intellectual Property Agreement dated June 22, 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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Consultant
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| /s/ Xxxxxxx X. Xxxxxxx | /s/ Xxxxx Xxxxxxx |
| By: Xxxxxxx X. Xxxxxxx | By: Xxxxx Xxxxxxx |
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Acting
Chief Executive Officer,
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 ICO’s
CEO.
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2.
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Consultant
shall not undertake to perform any tasks unless ICO’s CEO specifically
requests such action.
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EXHIBIT
B TO SEPARATION AGREEMENT
ICO
INTELLECTUAL PROPERTY AGREEMENT
(Confidentiality,
Invention Assignment, Nonsolicitation)
I
acknowledge that my service provider relationship, including without limitation
my employee relationship from inception through June 30, 2009, and my consultant
relationship thereafter with ICO Global Communications (Holdings) Limited,
and/or DBSD 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.
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 Definition of “Moral Rights.”
The term “Moral Rights” means all paternity, integrity, disclosure,
withdrawal, special and any other similar rights recognized by the laws of any
jurisdiction or country.
2.5 Definition of “Intellectual
Property Rights.” The term “Intellectual Property Rights”
means all trade secrets, copyrights (including renewal rights), trademarks, mask
work rights, patents and other intellectual property rights recognized by the
laws of any jurisdiction or country.
2.6 Assignment of
Rights. Except for Inventions that I can prove qualify fully
under the provisions of California Labor Code section 2870 and I have set forth
in Exhibit A, 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 Intellectual Property Rights. I waive any rights I
have or may have in the Inventions and copyrightable Work Product described in
the prior paragraphs, except for those that I can prove qualify fully under the
provisions of California Labor Code section 2870. Any assignment of
Inventions (and all Intellectual Property Rights with respect thereto) hereunder
includes an assignment of all Moral Rights. To the extent such Moral
Rights cannot be assigned to Company and to the extent the following is allowed
by the laws in any country where Moral Rights exist, I hereby unconditionally
and irrevocably waive the enforcement of such Moral Rights, and all claims and
causes of action of any kind against Company or related to Company’s customers,
with respect to such rights. I further acknowledge and agree that
neither my successors-in-interest nor legal heirs retain any Moral Rights in any
Inventions (and any Intellectual Property Rights with respect thereto). 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.
2.7 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.
3. Non-solicitation;
non-Interference. I agree that during my employment with Company, I will
not, either directly or indirectly, solicit, induce or encourage, or participate
in soliciting, inducing or encouraging any employee, independent contractor, or
consultant of Company to terminate his, her or its relationship with Company in
order to become an employee, consultant, or independent contractor to or for any
other person or entity. For purposes of the foregoing restriction, an
employee or consultant of Company includes any person or entity who is, or
within the preceding three (3) month period has been, an employee or consultant
of Company. I further agree that, during my employment with Company and at all
times thereafter, I will not: (a) take any action to disrupt, damage or
interfere with Company’s contractual relationships with its clients, employees,
consultants, agents, vendors, investor, venture capital firm, or other financial
institution, or induce any person or entity to breach any contractual obligation
owed to Company; or (b) engage in any unlawful or improper activity to disrupt,
damage or interfere with Company’s business, operations or
activities.
4. 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.
5. 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.
6. 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
June 22, 2009.
7. 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.
8. 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.
9. 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.
10. Miscellaneous.
10.1 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.
10.2 Controlling
Law/Venue. This Agreement shall be governed by the laws of the
State of California. Any legal proceeding shall be brought
exclusively in the courts in Oakland, California which the parties agree is a
convenient forum.
10.3 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.
10.4 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.
10.5 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.
11. 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.
[INTENTIONALLY
LEFT BLANK]
| XXXXX XXXXXXX |
ICO
GLOBAL COMMUNICATIONS
(HOLDINGS)
LIMITED
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/s/
Xxxxx Xxxxxxx
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/s/
Xxxxxxx X. Xxxxxxx
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Signature
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Signature
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Xxxxx
Xxxxxxx
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Acting
CEO, EVP & CFO
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Print
Name
|
Title
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6/24/09
|
6/24/09
|
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Date
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Date
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|||
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Exhibit
A
Previous
Inventions
|
TO:
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ICO
Global Communications (Holdings)
Limited
|
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FROM:
|
Xxxxx
Xxxxxxx
|
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DATE:
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6/24/09
|
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SUBJECT:
|
Previous
Inventions
|
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:
|
x
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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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Invention or
Improvement
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Party(ies)
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Relationship
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||
| 1. | |||||
| 2. | |||||
| 3. | |||||
| o |
Additional
sheets attached.
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||||
3. Limited
Exclusion Notification
This is to
notify you in accordance with Section 2872 of the California Labor Code
that the foregoing Agreement between you and Company does not require you to
assign or offer to assign to Company any Invention that you develop entirely on
your own time without using Company’s equipment, supplies, facilities or trade
secret information, except for those Inventions that either:
a. Relate
at the time of conception or reduction to practice to Company’s business, or
actual or demonstrably anticipated research or development; or
b. Result
from any work performed by you for Company.
To the
extent a provision in the foregoing Agreement purports to require you to assign
an Invention otherwise excluded from the preceding paragraph, the provision is
against the public policy of this state and is unenforceable.
This
limited exclusion does not apply to any patent or Invention covered by a
contract between Company and the United States or any of its agencies requiring
full title to such patent or Invention to be in the United States.
