EMPLOYMENT AGREEMENT
Exhibit 10.12
EXECUTION COPY
The parties to this Employment Agreement (the “Agreement”) are Xxxx Xxxxxx (the “Executive”),
residing at 00000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and ORBCOMM Inc. (the “Company”), a
company organized under the laws of Delaware, with offices located at 00000 Xxxxxxx 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 the Executive and the
Company that was effective as of March 31, 2008 (the “2008 Agreement”), except as otherwise
provided in Section 8(b) below.
The Company desires to provide for the Executive’s continued employment by the Company, and
the Executive desires to accept such continued employment under the terms and conditions contained
herein, and the parties hereto have agreed as follows:
1. Employment. The Company shall employ the Executive, and the Executive shall
serve the Company, as Executive Vice President — Technology and Operations, with duties and
responsibilities compatible with that position. The Executive agrees to devote his full time,
attention, skill, and energy to fulfilling his duties and responsibilities hereunder. The
Executive’s services shall be performed principally at the Company’s offices in Virginia or such
other location in the eastern United States as the Company shall determine.
2. Term of Employment. The Executive’s employment under this Agreement shall commence
as of December 31, 2010 (the “Start Date”) and shall continue through December 31, 2011 (the
“Initial Term”). Upon the expiration of the Initial Term or any extension thereof, the Initial
Term or the extended term, as applicable, shall be automatically extended by twelve (12) additional
calendar months through the next December 31st, unless either party hereto notifies the other party
in writing at least ninety (90) days in advance of such expiration that he or it does not want such
extension to occur (a “Notice of Non-Extension”), in which case the Initial Term or the extended
term, as applicable, will not be further extended and the Executive’s employment will terminate
upon such expiration. Notwithstanding the foregoing, the Executive’s employment with the Company
may be terminated prior to the expiration of the Initial Term or any extended term pursuant to the
provisions of Section 4 or 5 below. Hereinafter, the period of the Executive’s employment with the
Company is referred to as the “Term.”
3. Compensation. As full compensation for the services provided under this Agreement,
the Executive shall be entitled to receive the following compensation during the Term:
(a) Base Salary. The Executive shall be entitled to receive an annual base salary
(the “Base Salary”) of $245,700. Any Base Salary increase will be subject to the sole discretion
of the Company’s Board of Directors (the “Board”). Base Salary payments hereunder shall be made in
arrears in substantially equal installments (not less frequently than monthly) in accordance with
the Company’s customary payroll practices for its other executives, as those
practices may exist from time to time.
(b) Bonus. For each calendar year, the Executive shall also be eligible to receive a
bonus (the “Bonus”) equal to up to 75% of Base Salary, determined based on the achievement of
performance targets (both financial and qualitative) established each year by the Board. In order
to receive such a Bonus, if any, the Executive must be actively employed by the Company on the last
day of the fiscal year for which the Bonus is being paid and not have had his employment terminated
with “cause” pursuant to Section 4(c) below prior to the payment of such Bonus. Further, if the
Company establishes a bonus plan or program in which the Company’s executives are generally
permitted to participate, then the Executive shall be entitled to participate in such plan or
program. The terms and conditions of the Executive’s participation in, and/or any award under, any
such plan or program shall be in accordance with the controlling plan or program documents.
Any Bonus hereunder will be paid during the year following the fiscal year for which the Bonus
is being paid, provided that the Bonus will be paid no earlier than the rendering of the Company’s
audited financial statements for that fiscal year and in any case no later than the earlier of (i)
30 days after such rendering of the Company’s audited financial statements for that fiscal year and
(ii) June 30th of the year following that fiscal year.
(c) Employee Benefits. Subject to the Executive satisfying and continuing to satisfy
any plan or program eligibility requirements and other terms and conditions of the plan or program,
the Executive shall be entitled to receive Company-paid medical and disability insurance,
Company-paid term life insurance (which shall provide for a death benefit payable to the
Executive’s beneficiary), Company-paid holiday and vacation time, and other Company-paid employee
benefits (collectively, “Employee Benefits”), equivalent to those benefits provided to the
Company’s executives generally, subject to applicable policy limitations and maximums. In
addition, the Executive shall be entitled to participate in any profit sharing plan and/or pension
plan generally provided for the executives of the Company or any of its subsidiaries, provided that
the Executive satisfies any eligibility requirements for participation in any such plan. To the
extent the Company maintains a director’s and officer’s liability insurance policy, the Executive
shall be covered by such policy to the same extent as the Company’s other senior officers (however,
nothing in this Agreement shall require the Company to maintain such a policy). Notwithstanding
the foregoing, the Company reserves the right to amend, modify, or terminate, in its sole
discretion and consistent with applicable law, any Employee Benefit and any Employee Benefit plan,
program or arrangement provided to employees in general.
(d) Equity Plan Participation. The Executive shall be entitled to participate in any
equity incentive plan established by the Company in which the Company’s executives generally are
permitted to participate. The terms and conditions of the Executive’s participation in, and/or any
award under, any such plan shall be in accordance with the applicable controlling plan document
and/or award agreement. The number and/or price of any equity-based award granted to the Executive
shall be determined by the Board.
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(e) Expenses. The Company shall reimburse the Executive for all reasonable expenses
incurred by him in connection with the performance of his duties under this Agreement upon his
presentation of appropriate vouchers and/or documentation covering such expenses. In the event
that the Company requires the Executive to make weekly trips of greater than 200 miles
(e.g., to the Company’s offices in New Jersey), then, instead of (and not in
addition to) having those travel expenses reimbursed pursuant to usual Company policy, the Company
will provide the Executive with a $600 monthly car allowance.
(f) 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) Absence. If the Executive shall fail or be unable to perform his essential duties
under this Agreement for any reason, including a physical or mental disability, with or without
reasonable accommodation, for one hundred eighty (180) calendar days during any twelve (12) month
period or for one hundred (120) consecutive calendar days, then the Company may, by notice to the
Executive, terminate his employment under this Agreement as of the date of the notice. Any such
termination shall be made only in accordance with applicable law.
(b) Death. The Executive’s employment under this Agreement shall terminate
automatically upon his death.
(c) Termination by the Company. The Company shall have the right, exercisable at any
time in its sole discretion, to terminate the employment of the Executive for any reason whatsoever
with or without “cause” (as defined below). The Executive’s employment shall not be deemed to have
been terminated with “cause” unless and until (a) he shall have received written notice from the
Company advising him of the specific acts or omissions alleged to constitute “cause” and (b) in the
case of (i) negligence by the Executive in the performance of his duties, or (ii) the Executive’s
material breach of this Agreement, those acts or omissions continue uncorrected for fifteen (15)
days after he shall have received written notice to correct them.
As used in this Agreement, termination with “cause” shall mean only the Executive’s
involuntary termination for reason of: (i) negligence by the Executive in the performance of his
duties; (ii) embezzlement by the Executive from the Company; (iii) conviction of, or plea of guilty
or no contest to, a felony; (iv) any action or omission by the Executive that is injurious to the
financial condition or business reputation of the Company; or (v) the Executive’s material breach
of this Agreement.
(d) Termination by the Executive. The Executive shall have the right to terminate his
employment with the Company by providing at least two (2) months of advance written notice of such
decision. Upon the receipt of such notice from the Executive, the
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Company may in its sole discretion accelerate such two-month period in order to make such
termination effective sooner, and/or may withdraw any and all duties from the Executive and exclude
him from the Company’s premises during the notice period.
(e) Severance. If the Company terminates the Executive’s employment pusuant to
Section 4(a) above, the Executive’s employment is terminated pursuant to Section 4(b) above, the
Company terminates the Executive’s employment without “cause” pursuant to Section 4(c) above, or
the Executive’s employment terminates as a result of a Notice of Non-Extension provided to the
Executive by the Company pursuant to Section 2 above, then, subject to the Executive’s (or, if
applicable, his estate’s) execution of the Release attached hereto as Exhibit A (or in a
substantially similar form as the Company deems necessary in order to comply with then applicable
law) (the “Release”) and the Release becoming effective in accordance with its terms not later than
the 60th day following the Executive’s termination of employment, the Executive shall be entitled
to receive, as severance payments (such severance payments being the Executive’s sole entitlement
upon any such termination), one (1) year of his then Base Salary, payable in accordance with the
Company’s payroll schedule in effect from time to time. Subject to the last paragraph of this
Section 4(e), such severance payments will begin to be paid on the 60th day following the
Executive’s termination of employment. Subject only to the Executive’s delivery of an executed
Release and such Release becoming effective within the provided sixty-day period, the Company’s
obligation under this Section 4(e) shall be absolute and unconditional, and the Executive shall be
entitled to such severance payments regardless of the amount of compensation the Executive may earn
or be entitled to with respect to any other employment he may obtain during the period for which
severance payments are payable.
If the Company terminates the Executive’s employment with “cause” pursuant to Section 4(c)
above, if the Executive terminates his employment pursuant to Section 4(d) above, or if the
Executive’s employment terminates as a result of a Notice of Non-Extension provided to the Company
by the Executive, then the Executive shall not be entitled to any further payments under this
Agreement, including Base Salary, Bonus, Employee Benefits, or severance after the date of
termination, but the Executive shall be entitled to all Base Salary, Bonus and Employee Benefits
that have accrued prior to the effective date of such termination.
To the extent that any amount payable under this Agreement constitutes an amount payable under
a “nonqualified deferred compensation plan” (as defined in Section 409A of the Internal Revenue
Code (hereinafter, “Code Section 409A”)) that is not exempt from Code Section 409A, and such amount
is payable as a result of a “separation from service” (as defined in Code Section 409A), including
any amount payable under this Section 4 or Section 5 below, then, notwithstanding any other
provision in this Agreement to the contrary, such payment will not be made to the Executive until
the day after the date that is six months following his separation from service (the “Specified
Employee Payment Date”), but only if, as of his separation from service, he is a “specified
employee” under Code Section 409A and any relevant procedures that the Company may establish. For
the avoidance of doubt, on the Specified Employee Payment Date, the Executive will be paid in a
single lump sum all payments that
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otherwise would have been made to him under this Agreement during the six-month period but
were not because of this paragraph. This paragraph will not be applicable after the Executive’s
death.
5. Change of Control. If a “Change of Control” occurs, then the Executive shall be
entitled to severance payments upon the termination of his employment thereafter in accordance
with, and subject to the Release requirement of, Section 4(e) above as if his employment were
terminated by the Company without “cause,” unless the successor or transferee entity continues the
Executive’s employment on substantially equivalent terms. Notwithstanding the preceding sentence,
any severance payable as a result of this Section 5 shall be in an amount equal to eighteen (18)
months of Base Salary in lieu of the one (1) year of Base Salary set forth in Section 4(e) above
and shall be payable over an eighteen-month period in accordance with the Company’s periodic
payroll schedule in effect from time to time, such payments to commence on the date set forth under
Section 4(e) above. This Agreement shall be binding on any and all successors and/or assigns of
the Company, and the Company may assign its rights and obligations under this Agreement in
connection with a Change of Control to the successor or transferee entity without the Executive’s
consent.
“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, the Executive’s employment with the Company and the
cessation thereof, shall be settled by arbitration administered by the American Arbitration
Association (“AAA”) in Washington, DC 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 who
are on its Employment Dispute Resolution roster (or the equivalent thereof). If the parties fail
to
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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 (or the equivalent thereof).
There shall be one arbitrator. The arbitrator shall have the authority to resolve all issues in
dispute, including the arbitrator’s own jurisdiction, whether any dispute must be arbitrated
hereunder, and whether this Section 6 is void or voidable, 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. 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 or applicable
law, each party hereto shall be responsible for paying its own attorneys’ fees and costs incurred
in connection with any dispute between the parties. To the extent inconsistent with the form of
arbitration agreement that the Company’s employees generally are required to enter into, including
the Executive, this arbitration provision shall control. Otherwise, to the extent compatible,
effect shall be given to both this arbitration provision and the Company’s form of arbitration
agreement that the Executive has executed or will be required to execute.
7. Obligations of the Executive.
(a) Protectable Interests of the Company. The Executive acknowledges that he has
played and will continue to play an important role in establishing the goodwill of the Company and
its related entities, including relationships with clients, employees, and suppliers. The
Executive further acknowledges that over the course of his employment with the Company, he has and
will continue to (i) develop special relationships with clients, employees, and/or suppliers,
and/or (ii) be privy to Confidential Information (as defined below). As such, the Executive agrees
to the restrictions below in order to protect such interests on behalf of the Company, which
restrictions the parties hereto agree to be reasonable and necessary to protect such interests.
(b) Non-Competition. During the Executive’s employment and for the one (1) year
period immediately thereafter, the Executive shall not, anywhere in the world, whether directly or
indirectly, for himself or for any third party, (i) engage in any business activity, (ii) provide
professional services to another person or entity (whether as an employee, consultant, or
otherwise), or (iii) become a partner, member, principal, or stockholder having a 10% or greater
interest in any entity, but in each such case, only to the extent that such activity, person, or
entity is in competition with the Business. For purposes of this Section 7(b) and Section 7(c)
below, “Business” shall mean the business of offering wireless data communication services,
including for the purpose of tracking and/or monitoring fixed or mobile assets, the business of
designing, manufacturing or distributing modems that operate on such services, or any other
business in which the Company is materially engaged during the six (6) month period
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immediately
preceding the Executive’s termination of employment. The Executive acknowledges and understands
that,
due to the global nature of the Company’s business and the technological advancements in
electronic communications around the world, any geographic restriction of the Executive’s
obligation under this Section 7(b) would be inappropriate and counter to the protections sought by
the Company hereunder.
(c) Non-Solicitation. During the Executive’s employment and for the two (2) year
period immediately thereafter, the Executive shall not, anywhere in the world, whether directly or
indirectly, for himself or for any third party: (i) solicit any business or 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 the Executive’s
termination of employment, and in either case, for purposes of engaging in an activity that is in
competition with the Business; or (ii) solicit or recruit, directly or indirectly, any of the
Company’s or its subsidiaries’ employees, or any individuals who were employed by the Company’s or
its subsidiaries’ within six (6) months prior to the termination of the Executive’s employment, for
employment or engagement (whether as an employee, consultant, or otherwise) with a person or entity
involved in marketing or selling products or services competitive with the Business. The Executive
acknowledges and understands that, due to the global nature of the Company’s business and the
technological advancements in electronic communications around the world, any geographic
restriction of the Executive’s obligation under this Section 7(c) would be inappropriate and
counter to the protections sought by the Company hereunder.
(d) Confidential Information. The Executive acknowledges that during the course of
his employment with the Company, he has had and will continue to have access to information about
the Company, and its clients and suppliers, that is confidential and/or proprietary in nature, and
which belongs to the Company. As such, at all times, both during his employment and thereafter,
the Executive will hold in the strictest confidence, and not use or attempt to use except for the
benefit of the Company, and not disclose to any other person or entity (without the prior written
authorization of the Company) any Confidential Information (as defined below). Notwithstanding
anything contained in this Section 7(d), the Executive will be permitted to disclose any
Confidential Information to the extent required by validly issued legal process or court order,
provided that the Executive notifies the Company immediately of any such legal process or court
order in an effort to allow the Company to challenge such legal process or court order, if the
Company so elects, prior to the Executive’s disclosure of any Confidential Information.
For purposes of this Agreement, “Confidential Information” means any confidential or
proprietary information which belongs to the Company, or any of its clients or suppliers, including
without limitation, technical data, market data, trade secrets, trademarks, service marks,
copyrights, other intellectual property, know-how, research, business plans, product information,
projects, services, client lists and information, client preferences, client
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transactions, supplier
lists and information, supplier rates, software, hardware, technology,
inventions, developments, processes, formulas, designs, drawings, marketing methods and
strategies, pricing strategies, sales methods, financial information, revenue figures, account
information, credit information, financing arrangements, and other information disclosed to the
Executive by the Company or otherwise obtained by the Executive during the course of his
employment, directly or indirectly, and whether in writing, orally, or by electronic records,
drawings, pictures, or inspection of tangible property. “Confidential Information” does not
include any of the foregoing information which has entered the public domain other than by a breach
of this Agreement or the breach of any other obligation to maintain confidentiality of which the
Executive is aware.
(e) Return of Company Property. Upon the termination of the Executive’s employment
with the Company (whether upon the expiration of the Term or otherwise), or at any time during such
employment upon request by the Company, the Executive will promptly deliver to the Company and not
keep in his possession, recreate, or deliver to any other person or entity, any and all property
which belongs to the Company, or which belongs to any other third party and is in the Executive’s
possession as a result of his employment with the Company, including without limitation, computer
hardware and software, palm pilots, pagers, cell phones, other electronic equipment, records, data,
client lists and information, supplier lists and information, notes, reports, correspondence,
financial information, account information, product information, files, and other documents and
information, including any and all copies of the foregoing.
(f) Ownership of Property. The Executive acknowledges that all inventions,
innovations, improvements, developments, methods, processes, programs, designs, analyses, drawings,
reports, and all similar or related information (whether or not patentable) that relate to the
Company’s or any of its affiliates’ actual or anticipated business, research, and development, or
existing or future products or services, and that are conceived, developed, contributed to, made,
or reduced to practice by Executive (either solely or jointly with others) while engaged by the
Company or any of its affiliates (including any of the foregoing that constitutes any Confidential
Information) (“Work Product”) belong to the Company or such affiliate, and the Executive hereby
assigns, and agrees to assign, all of the above Work Product to the Company or such affiliate.
(g) Judicial Modification. The Executive acknowledges that it is the intent of the
parties hereto that the restrictions contained or referenced in this Section 7 be enforced to the
fullest extent permissible under the laws of each jurisdiction in which enforcement is sought. 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, for purposes of that jurisdiction, such restriction shall be construed, “blue
penciled” or judicially modified so as to thereafter be limited or reduced to the extent required
to be enforceable in accordance with applicable law.
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(h) Equitable Relief. The Executive acknowledges that the remedy at law for his
breach of this Section 7 will be inadequate, and that the damages flowing from such breach
will not be readily susceptible to being measured in monetary terms. Accordingly, upon a
violation of any part of this Section 7, the Company shall be entitled to immediate injunctive
relief (or other equitable relief) from any court with proper jurisdiction and may obtain a
temporary order restraining any further violation. No bond or other security shall be required in
obtaining such equitable relief, and the Executive hereby consents to the issuance of such
equitable relief. Nothing in this Section 7(h) shall be deemed to limit the Company’s remedies at
law or in equity for any breach by the Executive of any of the parts of this Section 7 which may be
pursued or availed of by the Company.
(i) Severance Payments. If the Company fails to make severance payments to the
Executive that are required under Section 4(e) above, then the provisions of Sections 7(b) and 7(c)
above shall automatically terminate and shall no longer be binding upon the Executive after the
date that the Company fails to make any severance payments required under Section 4(e) above.
Nothing in this Section 7(i) shall be deemed to limit the Executive’s remedies at law or equity for
any breach by the Company of its obligation to make severance payments pursuant to Section 4(e)
above.
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 (5) days after mailed by
registered mail, return receipt requested, to the Executive and the Company at their respective
addresses set forth above (or at such other address as a party may specify by notice to the other).
(b) Entire Agreement; Amendment. This Agreement contains a complete statement of all
of the arrangements between the Executive and the Company with respect to the employment of the
Executive by the Company and the Executive’s compensation for such employment, and supersedes all
previous agreements, arrangements, and understandings, written or oral, relating thereto other than
any existing equity award agreements previously executed by the parties hereto. Effective as of
the Start Date, this Agreement supersedes and replaces in its entirety the 2008 Agreement, provided
that any obligations of the Executive under the 2008 Agreement applicable to the time period before
the Start Date (such as the Executive’s obligation to keep certain information confidential) shall
survive and remain enforceable.
This Agreement may not be amended except by a written agreement signed by the Company and the
Executive. The intent of the parties hereto is that payments and benefits under this Agreement
comply with or be exempt from Code Section 409A and, accordingly, to the maximum extent permitted,
this Agreement shall be interpreted to be in compliance therewith. Notwithstanding anything in
this Agreement to the contrary, in the event that amendments to this Agreement are necessary in
order to comply with Code Section 409A or to minimize or
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eliminate any income inclusion and
penalties under Code Section 409A (e.g., under any document or operational correction program), the
Company and the Executive agree to negotiate in good faith the applicable terms of such amendments
and to implement such negotiated amendments, on a
prospective and/or retroactive basis, as needed. Further, a termination of employment shall
not be deemed to have occurred for purposes of any provision of this Agreement providing for the
payment of any amounts that are payable under a “nonqualified deferred compensation plan” (as
defined in Code Section 409A) that is not exempt from Code Section 409A unless such termination of
employment is also a “separation from service” within the meaning of Code Section 409A and, for
purposes of any such provision of this Agreement, references to a “termination,” “employment
termination,” “termination of employment,” “termination date,” “employment termination date,” or
like term shall mean “separation from service” or the date of the “separation from service,” as
applicable.
(c) Severability. In the event that any provision of this Agreement, or the
application of any provision to the Executive or the Company, is held to be unlawful or
unenforceable by any court or arbitrator, then the remaining portions of this Agreement shall
remain in full force and effect and shall not be invalidated or impaired in any manner.
(d) Waiver. No waiver by any party hereto of any breach of any term or covenant in
this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to
be or construed as a further or continuing waiver of any such breach, or a waiver of any other term
or covenant contained in this Agreement.
(e) Governing Law. This Agreement shall be governed by and construed in accordance
with the law of the Commonwealth of Virginia applicable to agreements made and to be performed in
the Commonwealth of Virginia.
IN WITNESS WHEREOF, the parties hereto have executed this document as of the ___ day of
November, 2010 to be effective as of the Start Date.
| ORBCOMM INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Xxxx Xxxxxx | ||||||
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EXHIBIT A — GENERAL RELEASE
FOR AND IN CONSIDERATION OF the severance benefits set forth in the employment agreement to
which this General Release is attached, I, Xxxx Xxxxxx, agree, on behalf of myself, my heirs,
executors, administrators, and assigns, except as otherwise provided in this General Release, to
release and discharge ORBCOMM Inc. (the “Company”), and its current and former officers, directors,
employees, agents, owners, subsidiaries, divisions, affiliates, parents, successors, and assigns
(the “Released Parties”) from any and all manner of actions and causes of action, suits, debts,
dues, accounts, bonds, covenants, contracts, agreements, judgments, charges, claims, and demands
whatsoever (“Losses”) which I, my heirs, executors, administrators, and assigns have, or may
hereafter have, against the Released Parties or any of them arising out of or by reason of any
cause, matter, or thing whatsoever from the beginning of the world to the date hereof, including
without limitation, my employment agreement (except as provided below), my employment by the
Company and the cessation thereof, and all matters arising under any federal, state, or local
statute, rule, or regulation, or principle of contract law or common law, including but not limited
to, the Worker Adjustment and Retraining Notification Act of 1988, as amended, 29
U.S.C. §§ 2101 et seq., the National Labor Relations Act of 1935, as
amended, 29 U.S.C. §§ 151 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 Genetic Information Nondiscrimination Act of 2008,
as amended, 42 U.S.C. §§ 2000ff 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., any federal, state, or local “whistleblower” law, and any other
equivalent federal, state, or local statute; provided that I do not release or discharge the
Released Parties (1) from any Losses arising under the ADEA which arise after the date on which I
execute this General Release or (2) from any rights that I may have to be indemnified by the
Company for any acts or omissions by me made in the course of my role as an officer and employee of
the Company. It is understood that nothing in this General Release is to be construed as an
admission on behalf of the Released Parties of any wrongdoing with respect to me, any such
wrongdoing being expressly denied.
I represent and warrant that I fully understand the terms of this General Release, that I have
had the benefit of advice of counsel or have knowingly waived such advice, and that I knowingly and
voluntarily, of my own free will, without any duress, being fully informed, and after due
deliberation, accepts its terms and sign the same as my own free act. I understand that as a
result of executing this General Release, I will not have the right to assert that the Company
violated any of my rights in connection with my employment agreement, my employment, or with the
termination of such employment; provided, however, that this General Release does not release or
discharge any claims that I may have against the Company for breach of its obligation to make
severance payments to me after the termination of my employment in accordance with Section 4(e) of
the employment agreement to which this General Release is attached.
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Except as to any claims that I may file for any breach by the Company of Section 4(e) of the
employment agreement to which this General Release is attached, I affirm that I have not filed, and
agree, to the maximum extent permitted by law, not to initiate or cause to be initiated on my
behalf, any complaint, charge, claim, or proceeding against the Released Parties before any
federal, state, or local agency, court, or other body relating to my employment agreement, my
employment, or the cessation thereof, and agree not to voluntarily participate in such a
proceeding. Notwithstanding the prior sentence, to the extent that applicable law does not permit
me to waive my right to file such a complaint, charge, or claim, I hereby waive my right to, and
agree, to the maximum extent permitted by law, not to, seek, receive, collect, or benefit from any
monetary or other compensatory settlement, award, judgment, or other resolution (including a
resolution that would otherwise provide for my reinstatement to employment) of any complaint,
charge, or claim that any agency or other body pursues against any of the Released Parties, whether
pursued solely on my behalf or on behalf of a greater class of individuals. However, nothing in
this General Release shall preclude or prevent me from filing a claim with the Equal Employment
Opportunity Commission 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) days in which to consider whether to execute this
General Release. I understand that I may waive such 21-day consideration period. I understand
that upon my execution of this General Release, I will have seven (7) days after such execution in
which I may revoke my execution of this General Release. In the event of revocation, I must
present written notice of such revocation to the General Counsel at the Company by delivering such
written notice to him at ____________________________________________.
If seven (7) days pass without receipt of such written notice of revocation, this General
Release shall become binding and effective on the eighth day (the “Release Effective Date”). This
General Release shall be governed by the laws of the Commonwealth of Virginia without giving effect
to its conflict of laws principles.
| Xxxx Xxxxxx | Date | |||||||||||
STATE OF
|
) | |||||||||||
| : | ss.: | |||||||||||
COUNTY OF
|
) | |||||||||||
On the ___ day of _________ in the year 201__, before me, the undersigned, personally appeared XXXX
XXXXXX, personally known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument, and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument he executed such
instrument, and that such individual made such appearance before the undersigned.
| Notary Public | ||||
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