EMPLOYMENT AGREEMENT
Exhibit 10.27
The parties to this Employment Agreement (the “Agreement") are Xxxxxx Xxxxxxxxx (“Xx.
Xxxxxxxxx"), residing at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 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 and 00000 Xxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000. Effective as of
the Start Date (as defined below), this Agreement amends, restates and supersedes in its entirety
the Employment Agreement between Xx. Xxxxxxxxx and the Company dated as of August 30, 2006 and
effective as of June 1, 2006 (the “2006 Agreement”), except as otherwise provided in Section 8(b)
below.
The Company desires to provide for Xx. Xxxxxxxxx’x continued employment by the Company, and
Xx. Xxxxxxxxx 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 Xx. Xxxxxxxxx, and Xx. Xxxxxxxxx shall
serve the Company, as a non-executive employee with duties and responsibilities compatible with
that position, as such compatible duties and responsibilities are adjusted from time to time in the
discretion of the Company’s Board of Directors (the “Board"), and Xx. Xxxxxxxxx shall also serve
the Company in the capacity of Chairman of the Board. In these capacities, the parties hereto
expect and reasonably anticipate that Xx. Xxxxxxxxx will provide substantial and continuous
services to the Company during the Term (as defined in Section 2 below) such that a “separation
from service” under Section 409A of the Internal Revenue Code (“Code Section 409A”) will not occur
during the Term.
2. Term of Employment. Xx. Xxxxxxxxx’x 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), Xx. Xxxxxxxxx’x 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.
3. Compensation. As full compensation for the services provided under this Agreement,
Xx. Xxxxxxxxx shall be entitled to receive the following:
(a) Base Salary. During the Term, Xx. Xxxxxxxxx shall be entitled to receive an
annual base salary (the “Base Salary") of $217,750. Any Base Salary increase will be subject to
the sole discretion of 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 fiscal year 2008, Xx. Xxxxxxxxx shall be eligible to receive a pro
rata bonus (the “Bonus"), which shall be payable in cash or cash equivalent, equal to 25% of the
bonus that would have been payable to Xx. Xxxxxxxxx under the 2006 Agreement if he had remained
employed as Chief Executive Officer of the Company for the entire fiscal year 2008. Any bonus for
fiscal year 2009 or any subsequent year shall be payable to Xx. Xxxxxxxxx, if at all, solely at the
discretion of the Board.
The Bonus hereunder will be paid in 2009, provided that the Bonus will be paid no earlier than
the rendering of the Company’s audited financial statements for 2008 and in any case no later than
the earlier of (i) 30 days after such rendering of the Company’s audited financial statements for
2008 and (ii) June 30, 2009.
(c) Employee Benefits. Subject to Xx. Xxxxxxxxx satisfying and continuing to satisfy
any plan or program eligibility requirements and other terms and conditions of the plan or program,
Xx. Xxxxxxxxx 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 Xx.
Xxxxxxxxx’x beneficiary), Company-paid holiday and vacation time, and other Company-paid employee
benefits (collectively, “Employee Benefits"), at least equivalent to those provided to senior
executives of the Company, and the benefit payable under such term life insurance in any year will
not be less than three (3) times Xx. Xxxxxxxxx’x then-current Base Salary, subject to applicable
policy limitations and maximums. In addition, Xx. Xxxxxxxxx shall be entitled to participate in
any profit sharing plan and/or pension plan generally provided for employees of the Company or any
of its subsidiaries, provided that Xx. Xxxxxxxxx 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.
(d) Equity Plan Participation. Xx. Xxxxxxxxx shall be entitled to participate in any
equity option plan or restricted equity plan established by the Company in which the Company’s
employees generally are permitted to participate. The terms and conditions of Xx. Xxxxxxxxx’x
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 Xx. Xxxxxxxxx shall be determined by the Board. Notwithstanding the foregoing,
the Board will grant to Xx. Xxxxxxxxx an award consisting of 100,000 stock appreciation rights, the
terms to be set forth in separate written agreements. Xx. Xxxxxxxxx has previously been awarded
298,667 restricted stock units and 150,000 stock appreciation rights (together, the “Awards”), and
the terms of the Awards are set forth in separate written agreements. During the Term, the Awards
will continue to vest in accordance with their terms, as set forth in separate written agreements.
-2-
(e) Expenses. The Company shall reimburse Xx. Xxxxxxxxx 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 Xx. Xxxxxxxxx for all
transportation (including gas), lodging, food and other expenses incurred by him in connection with
traveling on Company business, including travel and temporary lodging expenses incurred by Xx.
Xxxxxxxxx during his periodic visits to the Company’s offices.
(f) One-Time Cash Payment. Conditioned upon Xx. Xxxxxxxxx’x execution of the Release
attached hereto as Exhibit A, which Release will be executed contemporaneously with this Agreement,
and such Release becoming effective, the Company will pay to Xx. Xxxxxxxxx, on January 15, 2009, or
within three (3) business days thereafter, $116,250, plus interest on such amount compounded from
March 31, 2008 through the date that the amount is actually paid to Xx. Xxxxxxxxx, assuming an
annual interest rate of 4%, compounded monthly. Notwithstanding anything in this Agreement to the
contrary, this cash payment will be made to Xx. Xxxxxxxxx (or his estate, if applicable) at the
specified time whether or not Xx. Xxxxxxxxx is employed by the Company at such time.
(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, as a result of any physical and/or mental impairment, Xx.
Xxxxxxxxx shall fail or be unable to perform his essential duties under this Agreement, with or
without reasonable accommodation, for one hundred eighty (180) calendar days during any twelve (12)
month period or for one hundred twenty (120) consecutive calendar days, then the Company may (if it
determines that Xx. Xxxxxxxxx’x continued absence from his employment would be likely to have an
adverse effect on the business or operations of the Company), by notice to Xx. Xxxxxxxxx, terminate
his employment under this Agreement as of the date of the notice. Any such termination shall be
made in accordance with applicable law. Finally, nothing set forth in this Section shall be
construed as a waiver by Xx. Xxxxxxxxx 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 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 Xx. Xxxxxxxxx’x right to pursue legal action for any discharge that he deems
improper based on a legally protected characteristic (i.e., disability and/or handicap).
(b) Death. Xx. Xxxxxxxxx’x 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 Xx. Xxxxxxxxx’x
beneficiaries.
-3-
(c) Termination by the Company. The Company shall have the right, exercisable at any
time in its sole discretion, to terminate the employment of Xx. Xxxxxxxxx for any reason whatsoever
with or without “cause” (as defined below). Xx. Xxxxxxxxx’x 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 Xx. Xxxxxxxxx’x
involuntary termination for reason of Xx. Xxxxxxxxx’x: (i) xxxxx negligence or willful misconduct
by Xx. Xxxxxxxxx in the performance of his duties; (ii) embezzlement by Xx. Xxxxxxxxx from the
Company; (iii) conviction of, or plea of guilty or no contest to, a felony; (iv) Xx. Xxxxxxxxx’x
breach of a fiduciary duty of loyalty owed to the Company or any of its subsidiaries; (v) conduct
by Xx. Xxxxxxxxx beyond the scope of his authority as a director and/or 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; or (vi) material breach of this Agreement.
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.
(d) Termination by Xx. Xxxxxxxxx. Xx. Xxxxxxxxx shall have the right to terminate his
employment with the Company with or without “good reason.” If such termination is without “good
reason,” Xx. Xxxxxxxxx shall provide the Company with at least two (2) months of advance written
notice of such decision. Upon the receipt of such notice from Xx. Xxxxxxxxx, the Company may in
its sole discretion accelerate such 2-month period in order to make such termination effective
sooner, and/or may withdraw any and all duties from Xx. Xxxxxxxxx and exclude him from the
Company’s premises during the notice period.
Prior to any termination being deemed to be with “good reason,” Xx. Xxxxxxxxx shall give
written notice to the Board advising them of the specific acts or omissions alleged to constitute
“good reason,” such notice to be given within ninety (90) days of the occurrence of such act or
omission, and such act or omission must remain uncorrected after the Board shall have had thirty
(30) calendar days to correct them. If such act or omission remains uncorrected after such 30-day
period, then Xx. Xxxxxxxxx’x employment will be deemed terminated unless the parties agree to a
different termination date.
-4-
As used in this Agreement, termination for “good reason” shall mean only Xx. Xxxxxxxxx’x voluntary termination of employment for reason of: (i) any reduction by the
Company of Xx. Xxxxxxxxx’x Base Salary or material failure to timely pay any Base Salary, Bonus, or
other remuneration due to Xx. Xxxxxxxxx under this Agreement; (ii) the Company’s material breach of
this Agreement, provided that failure of the shareholders to elect Xx. Xxxxxxxxx as a director
shall not be deemed a breach of this Agreement; (iii) the failure of the Board to nominate Xx.
Xxxxxxxxx as its Chairman for the 2009 proxy statement; and (iv) the Board’s removal of Xx.
Xxxxxxxxx as Chairman for a reason other than “cause” (as defined in this Agreement). In
connection with any termination of Xx. Xxxxxxxxx’x employment under Section 4(a) or 4(b), the Board
may remove Xx. Xxxxxxxxx as Chairman of the Board and/or as a member of the Board, and such removal
will not be deemed for any purpose under this Agreement to be a termination of Xx. Xxxxxxxxx
without “cause,” and will not give rise to any grounds for Xx. Xxxxxxxxx to claim “good reason”
under this Agreement.
(e) Severance. If the Company shall terminate Xx. Xxxxxxxxx’x employment as a
non-executive employee under this Agreement without “cause” pursuant to Section 4(c) above on or
before December 31, 2010, or if Xx. Xxxxxxxxx terminates his employment under this Agreement with
“good reason” pursuant to Section 4(d) above on or before December 31, 2010, then, upon Xx.
Xxxxxxxxx’x execution of the Release attached hereto as Exhibit B (or in substantially similar form
as the Company deems necessary in order to comply with then applicable law) (the “Exhibit B
Release”) and such Exhibit B Release becoming effective, Xx. Xxxxxxxxx shall be entitled (i) to
continue to receive his then Base Salary for the period equal to the greater of (x) one (1) year
immediately following such termination and (y) the remainder of the Term, 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 Xx. Xxxxxxxxx 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 Xx. Xxxxxxxxx’x delivery of an executed
and effective Exhibit B Release, the Company’s obligation under this Section 4(e) shall be absolute
and unconditional, and Xx. Xxxxxxxxx shall be entitled to such severance benefits regardless of the
amount of compensation and benefits that Xx. Xxxxxxxxx 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 Xx. Xxxxxxxxx’x employment with the Company is terminated pursuant to Sections 4(a) or 4(b)
above, if the Company terminates Xx. Xxxxxxxxx’x employment with “cause” pursuant to Section 4(c)
above, if Xx. Xxxxxxxxx terminates his employment without “good reason” pursuant to Section 4(d)
above, or if Xx. Xxxxxxxxx’x employment is terminated for any reason after December 31, 2010, then
Xx. Xxxxxxxxx shall not be entitled to any further payments under this Agreement, including Base
Salary, Bonus, Employee Benefits, or severance. If Xx. Xxxxxxxxx’x position as Chairman of the
Board is terminated for any reason but his position as a non-executive employee of the Company is not terminated, then Xx. Xxxxxxxxx shall not be
entitled to any severance payments under this Agreement (except to the extent that Xx. Xxxxxxxxx
exercises any right he may have to resign with “good reason”), but will continue to be entitled to
his Base Salary, Bonus and Employee Benefits during his continued employment as set forth in this
Agreement.
-5-
For the avoidance of doubt, to the extent that Xx. Xxxxxxxxx resigns from his employment with
the Company for “good reason,” or his employment with the Company is terminated without “cause,” in
either case such that he receives severance under this Section 4(e) but continues to serve as
Chairman of the Board, any subsequent removal of Xx. Xxxxxxxxx, or his resignation, from his
position as Chairman of the Board and/or as a member of the Board will not be grounds for Xx.
Xxxxxxxxx to receive any additional severance benefits under this Agreement or otherwise, whether
or not such removal is with or without cause or such resignation is with or without good reason.
To the extent that any amount payable under this Agreement constitutes an amount payable under
a “nonqualified deferred compensation plan” (as defined in Code Section 409A) following a
“separation from service” (as defined in Code 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 Xx. Xxxxxxxxx earlier than the day after the date that is six months
following his “separation from service,” but only if he is 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.” On the first day of the seventh month following
separation of employment, or within three (3) business days thereafter, all amounts which have been
held back for the 6-month period, will be paid to the Executive. This paragraph will not be
applicable after Xx. Xxxxxxxxx’x death.
5. Change of Control. If a “Change of Control” occurs on or before December 31, 2010,
then Xx. Xxxxxxxxx shall be entitled to severance in accordance with Section 4(e) upon the
termination of his employment (if such termination occurs on or before December 31, 2010), unless
such successor or transferee continues Xx. Xxxxxxxxx’x employment on substantially equivalent
economic terms, duties and responsibilities. This Agreement shall be binding on any and all
successors and/or assigns of the Company. If a Change of Control occurs having a value in excess
of $6.045 per share (as adjusted for any stock dividends, combinations or splits following the
Start Date), then Xx. Xxxxxxxxx shall be entitled to have all equity related and stock based
compensation awards issued to him as of the date of such Change of Control to become fully
exercisable (without regard to the satisfaction of any time-based or performance criteria) in
accordance with the terms set forth in the separate written agreements evidencing such equity
related and stock based compensation awards.
-6-
“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).
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, Xx. Xxxxxxxxx’x 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 Xx. Xxxxxxxxx, 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 Xx. Xxxxxxxxx has executed or will be required to execute.
-7-
7. Obligations of Xx. Xxxxxxxxx.
(a) Protectable Interests of the Company. Xx. Xxxxxxxxx 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. Xx.
Xxxxxxxxx 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, Xx. Xxxxxxxxx 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.
(b) Non-Competition. During Xx. Xxxxxxxxx’x employment and for the one (1) year
period immediately thereafter, Xx. Xxxxxxxxx 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 Xx. Xxxxxxxxx’x termination of employment. Xx. Xxxxxxxxx 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 Xx. Xxxxxxxxx’x
obligation under this Section 7(b) would be inappropriate and counter to the protections sought by
the Company hereunder.
(c) Non-Solicitation. During Xx. Xxxxxxxxx’x employment and for the two (2) year
period immediately thereafter, Xx. Xxxxxxxxx shall not, anywhere in the world, whether directly or
indirectly, for himself or for any third party: (i) solicit any business or contract, or enter
into any business or contract, directly or indirectly, with any supplier, licensee, customer, or
partner 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 Xx. Xxxxxxxxx’x
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 individual who was employed by the Company’s or
its subsidiaries’ within six (6) months prior to the termination of Xx. Xxxxxxxxx’x 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. Xx. Xxxxxxxxx
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 Xx. Xxxxxxxxx’x obligation under this Section 7(c) would be inappropriate
and counter to the protections sought by the Company hereunder.
-8-
Notwithstanding prior paragraphs (b) and (c), the following shall not be deemed to be a
violation of Xx. Xxxxxxxxx’x non-competition and non-solicitation covenants: (i) Xx. Xxxxxxxxx
becoming employed by any entity that is a client (VAR, IVAR, Country Representative or Licensee) of
the Company at the time of Xx. Xxxxxxxxx’x termination; (ii) Xx. Xxxxxxxxx becoming employed by an
entity that is a corporate affiliate of the Company; and (iii) Xx. Xxxxxxxxx holding a minority
position (less than 10% interest) in any private investment or making any investment in public
securities.
(d) Confidential Information. Xx. Xxxxxxxxx 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 his employment and thereafter, Xx.
Xxxxxxxxx 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), Xx. Xxxxxxxxx will be permitted to disclose any
Confidential Information to the extent required by validly issued legal process or court order,
provided that Xx. Xxxxxxxxx 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 Xx. Xxxxxxxxx’x disclosure of any Confidential Information.
For purposes of this Agreement, “Confidential Information” means any confidential or
proprietary information that 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 Xx. Xxxxxxxxx by the Company or otherwise obtained
by Xx. Xxxxxxxxx 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 that 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 Xx. Xxxxxxxxx is aware.
-9-
(e) Return of Company Property. Upon the termination of Xx. Xxxxxxxxx’x 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, Xx. Xxxxxxxxx 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
that belongs to the Company, or that belongs to any other third party and is in Xx. Xxxxxxxxx’x
possession as a result of his employment or directorship 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. Xx. Xxxxxxxxx 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 Xx. Xxxxxxxxx (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 Xx. Xxxxxxxxx hereby
assigns, and agrees to assign, all of the above Work Product to the Company or such affiliate.
(g) Judicial Modification. Xx. Xxxxxxxxx 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 New Jersey. If any of the restrictions contained or
referenced in this Section 7 is for any reason held by an arbitrator or 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. Xx. Xxxxxxxxx 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 Xx. Xxxxxxxxx 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 Xx. Xxxxxxxxx of any of the parts of this Section 7 that may be pursued or
availed of by the Company.
-10-
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 Xx. Xxxxxxxxx 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 Xx. Xxxxxxxxx and the Company with respect to the employment of Xx.
Xxxxxxxxx by the Company and Xx. Xxxxxxxxx’x 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 Xx. Xxxxxxxxx under the 2006 Agreement applicable to the time period
before the Start Date (such as Xx. Xxxxxxxxx’x obligation to keep certain information
confidential).
This Agreement may not be amended except by a written agreement signed by the Company and Xx.
Xxxxxxxxx. 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, Xx. Xxxxxxxxx and the Company will cooperate to make such amendments, on a prospective and/or
retroactive basis, as agreed to by the parties hereto at such time.
(c) Severability. In the event that any provision of this Agreement, or the
application of any provision to Xx. Xxxxxxxxx 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 performed in the
State of New Jersey.
-11-
IN WITNESS WHEREOF, the parties hereto have executed this document as of the 31st
day of March, 2008 to be effective as of the Start Date.
| ORBCOMM INC. | ||||
| By: | /s/ Xxxxxxxxx Xx Xxxx | |||
| Name: | Xxxxxxxxx Xx Xxxx | |||
| Title: | Executive Vice President and General Counsel | |||
| /s/Xxxxxx X Xxxxxxxxx | ||||
| Xxxxxx X Xxxxxxxxx | ||||
-12-
EXHIBIT A — RELEASE
FOR AND IN CONSIDERATION OF the payment to be made under Section 3(f) of the employment
agreement dated as of March _____, 2008 (the “Employment Agreement”) to which this Release is
attached, I, Xxxxxx Xxxxxxxxx, 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:
| (a) | any employment agreement that I have with the Company other than the Employment Agreement; |
|
| (b) | the cessation of my employment as Chief Executive Officer of the Company and the transition
of my employment from Chief Executive Officer to non-executive employee, including matters
relating thereto 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; and |
| (c) | any matter arising under 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 Release and (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, director, and employee of the Company. It is understood that nothing in this
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.
-13-
I represent and warrant that I fully understand the terms of this Release, that I have had the
benefit of advice of counsel, 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 Release, I will not have the
right to assert, among other things, that the Company violated any of my rights in connection with
any employment agreement (other than the Employment Agreement) or the termination of my role as
Chief Executive Officer of the Company.
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
any Losses released and discharged in this Release, and agree not to voluntarily participate in
such a proceeding. However, nothing in this Release shall preclude or prevent me from filing a
claim that challenges the validity of this Release solely with respect to my waiver of any Losses
arising under the ADEA.
I acknowledge that I have twenty-one (21) days in which to consider whether to execute this
Release. I understand that I may waive such 21-day consideration period. I understand that upon
my execution of this Release, I will have seven (7) days after such execution in which I may revoke
my execution of this 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 Release
shall become binding and effective on the eighth day.
-14-
This Release shall be governed by the laws of the State of New Jersey without giving effect to
its conflict of laws principles.
| March 31, 2008 | ||
Xxxxxx Xxxxxxxxx
|
Date |
STATE OF
|
) | |||||||||
| : | ss.: | |||||||||
COUNTY OF
|
) | |||||||||
On the
_____ day of in the year
2008, before me, the undersigned, personally appeared
XXXXXX XXXXXXXXX, 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 |
-15-
EXHIBIT B — GENERAL RELEASE
FOR AND IN CONSIDERATION OF the employment agreement dated as of March
_____, 2008 (the
“Employment Agreement”) to which this General Release is attached, I, Xxxxxx Xxxxxxxxx, 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,
the Employment Agreement, my employment by and directorship with 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, (2) from any Losses arising out of the
Company’s breach of its obligation to make severance payments in accordance with Section 4(e) of
the Employment Agreement, or (3) 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, director, 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 the Employment Agreement, my employment, or with the
termination of such employment.
-16-
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
the 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.
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. 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 Xxxxxxxxx
|
Date |
STATE OF
|
) | |||||||||
| : | ss.: | |||||||||
COUNTY OF
|
) | |||||||||
On the
_____ day of in the year
200__, before me, the undersigned, personally appeared
XXXXXX XXXXXXXXX, 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 |
-17-
