EXHIBIT 10.21.3
RETENTION AND SEPARATION AGREEMENT
This retention and separation agreement (this "Agreement") is entered
into on this 11th day of October (the "Effective Date") by and between ORBCOMM
Inc., a company organized under the laws of Delaware (the "Company"), and Xxxx
X. Xxxxx (the "Executive").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Executive is currently employed by the Company as its
Chief Financial Officer; and
WHEREAS, the Executive and the Company are parties to an Employment
Agreement entered into as of May 5, 2006 (the "Employment Agreement");
capitalized terms used in the Agreement but not otherwise defined shall have the
meanings set forth in the Employment Agreement; and
WHEREAS, pursuant to the Employment Agreement, the initial term of the
Executive's employment is scheduled to expire as of December 31, 2006, subject
to the parties' ability to extend that term by mutual agreement; and
WHEREAS, the parties have mutually agreed not to extend the Executive's
term of employment beyond December 31, 2006; and
WHEREAS, the Company now desires to make arrangements to retain the
services of the Executive through December 31, 2006, and to set forth each of
the parties' obligations upon the termination of the Executive's employment; and
WHEREAS, to the extent that the terms of this Agreement are
inconsistent with the terms of the Employment Agreement, the parties hereto wish
to supersede those provisions of the Employment Agreement;
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants contained below, the parties hereto agree as follows:
1. Continued Employment. From the Effective Date through December 31,
2006 (the "Separation Date"), the Company shall continue to employ the
Executive, subject to the right of the parties to terminate such employment
sooner pursuant to Section 4 of the Employment Agreement. Unless sooner
terminated, the Executive's employment with the Company will terminate upon the
close of business on the Separation Date.
The Executive's continued employment with the Company shall continue to
be governed by the Employment Agreement, specifically, and without limitation,
Sections 1 and 3 of the Employment Agreement, except to the extent otherwise
provided in this Agreement.
2. Retention Payment. As an incentive to remain with the Company
through the Separation Date, the Company will provide the following to the
Executive if either he remains employed by the Company through the Separation
Date or his employment is terminated by the Company without cause (in accordance
with Section 4(c) of the Employment Agreement) before the Separation Date:
(a) continued payment of the Base Salary (as defined in the
Employment Agreement) for the six-month period beginning
immediately after the Executive's employment termination date,
less any and all applicable tax and other withholdings,
payable in accordance with the Company's regular payroll dates
and procedures;
(b) continued payment of the Base Salary (as defined in the
Employment Agreement) for the three-month period beginning
immediately after the expiration of the retention payments
under Section 2(a) above, less any and all applicable tax and
other withholdings, payable in accordance with the Company's
regular payroll dates and procedures; provided, however, that
such payments under this Section 2(b) will cease upon the
Executive being employed by another employer as chief
financial officer, or in another position with comparable Base
Salary; and
(c) eligibility to receive, in 2007, a discretionary bonus for the
2006 year, the amount of such bonus, if any, to be determined
by the Compensation Committee of the Board of Directors of the
Company in its sole discretion. Such bonus, if any, will be
paid to the Executive at generally the same time in 2007 that
annual bonuses for the 2006 year are paid to the Company's
then actively employed executive officers, notwithstanding
that the Executive will not be actively employed by the
Company on the date that such bonus would be paid to him.
For the avoidance of doubt, the Executive will not be entitled to any
payments under this Section 2 if, before the Separation Date, he voluntarily
terminates his employment with the Company, his employment is terminated by the
Company with cause (in accordance with Section 4(c) of the Employment
Agreement), or his employment with the Company is terminated as a result of his
disability or death (in accordance with Sections 4(a) and 4(b) of the Employment
Agreement).
The Executive acknowledges that he will be eligible for the benefits
under this Section 2 in lieu of the severance benefits under Section 4(e) of the
Employment Agreement. The parties hereto agree that Section 4(e) of the
Employment Agreement is unconditionally superseded in its entirety and no longer
of any force or effect. Also, by virtue of superseding Section 4(e) of the
Employment Agreement, Section 5 of the Employment Agreement is hereby amended in
its entirety to read as follows:
"5. MERGER OR SALE OF ASSETS. If the Company shall merge or
consolidate with another corporation or other entity, or shall
transfer all
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or substantially all of its assets to another person, corporation,
or other entity, then the Executive shall be entitled to the
benefits set forth under Section 2 of the Retention and Separation
Agreement dated October 5, 2006 between the Executive and the
Company, as if his employment were terminated by the Company
without 'cause,' unless such successor or transferee person,
corporation, or entity continues the Executive's employment on
substantially equivalent terms."
3. General Release. As a condition to receiving any of the benefits set
forth in Section 2 above, at the time of or following the Executive's
termination of employment with the Company, the Executive will be required to
execute the general release attached hereto as Exhibit A (the "Release") and the
Release must become effective. The Release will become effective upon the
"Release Effective Date" (as defined in the Release).
4. RSU Award. Prior to the Separation Date, the Company will grant to
the Executive an award of 14,000 restricted stock units ("RSUs") under the
Company's 2006 Long-Term Incentives Plan. The terms and conditions of the RSUs
shall be set forth in a separate award agreement, to be entered into by the
parties hereto at the time such award is granted to the Executive.
5. Stock Options. Upon the termination of the Executive's employment
with the Company, any options to purchase shares of the Company's common stock
("Stock Options") held by the Executive shall be governed by the terms of the
applicable Stock Option agreement, as amended as of May 5, 2006.
6. No Other Compensation. The Executive acknowledges that, apart from
Base Salary and vested employee benefits accrued through his employment
termination date, the only compensation to which he will be entitled from the
Company upon the termination of his employment is set forth in this Agreement
and that he is not entitled to any other such compensation from the Company.
7. Continued Obligations. The Executive acknowledges that he continues
to be bound by the terms and conditions of Section 6 of the Employment
Agreement, both during his continued employment with the Company and, to the
extent applicable, following the termination of such employment. Notwithstanding
the foregoing, the definition of "Business" set forth in Section 6(b) of the
Employment Agreement (which definition is also used in and applicable to Section
6(c) of the Employment Agreement) is hereby amended to read as follows:
"'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
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Company is materially engaged during the six-month period
immediately preceding the Executive's termination of employment."
In addition, notwithstanding anything to the contrary in Section 6(b)
and 6(c) of the Employment Agreement, as amended by this Section 7, it shall not
be a violation of such Sections 6(b) and 6(c) if (i) the Executive becomes
employed by an entity whose principal business is offering wireless cellular
voice communication so long as the Executive is not involved, in any material
respect, in such entity's wireless data communications services, if any, or (ii)
the Executive makes an investment in publicly-traded securities.
8. Non-Disparagement. During his employment with the Company and
thereafter, the Executive will not disparage, portray in a negative light, or
take any action that would lead to unfavorable publicity for the Company
(including the Company's current or former customers, suppliers, distributors,
officers, directors, employees, agents, owners, parents, subsidiaries, and
affiliates), whether such disparagement, portrayal, or action is made publicly
or privately, including, without limitation, in any and all interviews, oral
statements, written materials, electronically-displayed materials, and materials
or information displayed on Internet-related sites.
Notwithstanding anything in this Section 8, the Executive will not be
prevented from complying with any court order, subpoena, or government
investigation, or from complying with the requirements of any applicable law or
common law duty.
9. Cooperation. During his employment with the Company and for the
one-year period thereafter, and if deemed necessary by the Company, the
Executive will reasonably assist and cooperate with the Company (and its
directors, agents, and attorneys) in all respects in connection with the conduct
of any pending or future action, proceeding, internal investigation,
governmental or regulatory investigation, civil or administrative proceeding,
arbitration, or litigation involving the Company, including, without limitation,
any such action, proceeding, investigation, arbitration, or litigation in which
the Executive is called to testify, and will promptly respond to all reasonable
requests by the Company relating to information that may be in the Executive's
possession. This obligation shall exist regardless of whether the Company is
named as a party or as a subject or target of any action, proceeding,
investigation, arbitration, or litigation. The Executive will perform all acts
and execute and deliver all documents that may be reasonably necessary to
fulfill the obligations under this Section 9. The Company will promptly
reimburse the Executive for any reasonable out-of-pocket and travel expenses
incurred by him in connection with his fulfillment of his obligations under this
Section 9, provided that such expenses have been approved by the Company, in
writing, prior to the Executive incurring the expense.
10. Arbitration. Section 7 of the Employment Agreement is incorporated
herein and shall be applicable as if such Section 7 were set forth and written
in this Agreement, and any dispute or controversy under this Agreement will be
decided pursuant to arbitration in accordance with the provisions of Section 7
of the Employment Agreement.
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11. Continued Validity of the Employment Agreement. Except as amended
and superseded by this Agreement, the Employment Agreement shall remain in full
force and effect, and shall continue to bind the parties hereto. To the extent
that the terms of this Agreement conflict or are inconsistent with the terms of
the Employment Agreement, the terms of this Agreement will govern.
12. Entire Agreement; Amendment. This Agreement, together with the
Employment Agreement to the extent not superseded by this Agreement, the Stock
Option agreement, as amended, any RSU award agreement, and the registration
rights agreement, contain the entire agreement between the Executive and the
Company with respect to the subject matter of this Agreement, and supersedes any
and all prior agreements and understandings, whether oral or written, between
the Executive and the Company with respect to the subject matter of this
Agreement. This Agreement may be amended only by an agreement in writing signed
by the Executive and the Company.
13. Severability. In the event that any of the provisions of this
Agreement, or the application of any such provisions to the Executive or the
Company with respect to obligations hereunder, is held to be unlawful or
unenforceable by any court or arbitrator, then the remaining portions of this
Agreement will remain in full force and effect and will not be invalidated or
impaired in any manner.
14. Waiver. No waiver by any party hereto of the breach of any term or
covenant contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, will 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.
15. No Other Representations. The Executive acknowledges that the
Company has made no representations or warranties to him concerning the terms,
enforceability, or implications of this Agreement other than as reflected in
this Agreement.
16. Governing Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New Jersey without giving effect to
its conflict of laws principles.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed will be deemed to be an original, and
such counterparts will, when executed by the parties hereto, together constitute
but one agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first set forth above.
ORBCOMM Inc. EXECUTIVE
By: /S/ XXXXXX X. XXXXXXXXX /S/ XXXX X. XXXXX
------------------------------ --------------------
Name: Xxxxxx X. Xxxxxxxxx Xxxx X. Xxxxx
Title: Chief Executive Officer
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GENERAL RELEASE OF XXXX X. XXXXX
FOR AND IN CONSIDERATION OF the retention and separation agreement to
which this General Release is attached and the payments contemplated therein, I,
XXXX X. XXXXX, agree, on behalf of myself and 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") that I and 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 and any other
agreement with the Company, 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 X.X.X.xx.xx. 2101 et seq., the National Labor Relations Act of
1935, as amended, 29 X.X.X.xx.xx. 151 et seq., the Family and Medical Leave Act
of 1993, as amended, 29 U.S.C.ss.ss.2601 et seq., Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C.ss.ss.2000e et seq., the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C.ss.ss.621 et seq. (the "ADEA"), the
Americans with Disabilities Act of 1990, as amended, 42 U.S.C.ss.ss.12101 et
seq., the Employee Retirement Income Security Act of 1974, as amended, 29
U.S.C.ss.ss.1001 et seq., the Virginia Human Rights Act, as amended, Va. Code
Xxx.ss.ss.2.1-714 et seq., the Virginia Persons with Disabilities Act, as
amended, Va. Code Xxx.ss.ss.51.5-1 et seq., the New Jersey Law Against
Discrimination, as amended, N.J. Stat. Xxx.xx.xx. 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 from any Losses arising under the ADEA that arise
after the date on which I execute this General Release. 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 affirm that I have not filed, and agree, to the maximum extent
permitted by law, not to file or initiate, or cause to be filed or 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 or any other agreement with the Company, 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 a charge or claim
with a governmental agency or other body, then I hereby waive my right to, and
agree not to, seek, receive, collect, or benefit from any monetary or other
compensatory settlement, award, judgment, or other resolution to any complaint,
charge, claim, or proceeding that any governmental agency or other body pursues
against any of the Released Parties, whether pursued solely on behalf of me or
on behalf of a greater class of individuals.
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I understand that 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 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,
accept 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 or any other agreement with the Company, my employment, or with the
cessation of such employment.
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 Senior Vice President and General
Counsel of the Company by delivering such written notice to him at 0000 Xxxxxxx
Xxxxxx, Xxxx Xxx, XX 00000; facsimile number (000) 000-0000.
IF SEVEN (7) DAYS PASS WITHOUT RECEIPT OF SUCH WRITTEN NOTICE OF
REVOCATION, THIS GENERAL RELEASE SHALL BECOME BINDING AND EFFECTIVE ON THE
EIGHTH DAY (THE "RELEASE EFFECTIVE DATE"). This General Release shall be
governed by the laws of the State of New Jersey without giving effect to its
conflict of laws principles.
_________________________________ ____________________
XXXX X. XXXXX DATE
STATE OF NEW JERSEY )
: ss.:
COUNTY OF ___________________ )
On the ___ day of ___________________ in the year 200__, before me, the
undersigned, personally appeared XXXX X. XXXXX, 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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