Exhibit 10.26
*** TEXT OMITTED AND FILED SEPARATELY CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R.
SECTIONS 200.80(b)(4) AND 230.406
EXECUTION COPY
EMPLOYMENT AGREEMENT
The parties to this Employment Agreement (the "AGREEMENT") are Xxxxxx X.
Xxxxxxxxxx (the "EXECUTIVE"), residing at 0 Xxxx Xxxx, Xxxxxxxx, XX 00000, and
ORBCOMM Inc. (the "COMPANY"), a company organized under the laws of Delaware,
with offices located at 0000 Xxxxxxx Xxxxxx, Xxxx Xxx, XX 00000.
The Company desires to provide for the Executive's employment by the
Company, and the Executive desires to accept such employment under the terms and
conditions contained herein, and the parties hereto have agreed as follows:
1. EMPLOYMENT. The Company shall employ the Executive, and the
Executive shall serve the Company, as Executive Vice President and Chief
Financial Officer, with duties and responsibilities compatible with that
position. The Executive shall report to the Chief Executive Officer of the
Company. The Executive agrees to devote his full time, attention, skill, and
energy to fulfilling his duties and responsibilities hereunder. The Executive's
services shall be performed principally at the Company's New Jersey office. The
Executive understands and acknowledges that he will be required to travel
periodically to the Company's offices in Dulles, Virginia.
2. TERM OF EMPLOYMENT. The Executive's employment under this Agreement
shall commence as soon as possible after execution of this Agreement (the "START
DATE") and shall continue until September 30, 2009, unless sooner terminated
pursuant to the provisions of Section 4 (the "TERM"). The parties hereto may
extend the Term by a written agreement, signed by both parties, that
specifically references this Agreement. Upon the natural expiration of the Term
(or any extended Term), (a) the Executive's employment will become "at-will" and
will be terminable by either party hereto for any reason not prohibited by law
or for no reason, and with or without notice, (b) Section 4(e) below shall no
longer be applicable and (c) the post-employment restrictions on the Executive
under Section 7(b) below will no longer be applicable. Further, the failure of
the parties to extend this Agreement or reach a new Agreement shall not be
deemed as a "material breach" of this Agreement by the Executive.
3. COMPENSATION. As full compensation for the services provided under
this Agreement, the Executive shall be entitled to receive the following
compensation during the Term:
(a) Base Salary. The Executive shall be entitled to receive an annual
base salary (the "BASE SALARY") of $270,000. Any Base Salary increase will be
subject to the sole discretion of the Company's Board of Directors (the
"Board"). Base Salary payments hereunder shall be made in arrears in
substantially equal installments (not less frequently than monthly) in
accordance with the Company's customary payroll practices for its other
executives, as those practices may exist from time to time.
(b) Bonus. For each fiscal year during the Term, beginning with a pro
rata bonus for the 2006 fiscal year, the Executive shall also be eligible to
receive a bonus (the "BONUS"), which shall be payable in cash or cash
equivalent.
No Bonus will be paid unless the Company meets or exceeds 90% of the
applicable performance targets for that fiscal year (the "Targets"). If the
Company achieves 90% of the Targets, the Bonus will be equal to 18% of the
Executive's base salary then in effect. If the Company achieves 100% of the
Targets, the Bonus will be equal to 80% of the Executive's base salary then in
effect. If the Company achieves or exceeds 125% of the Targets, the Bonus will
be equal to 100% of the Executive's base salary then in effect.
If the Company achieves between 90% and 100% of the Targets, the Bonus
will be equal to a percentage of the Executive's base salary then in effect,
with such percentage being between 18% and 80%, calculated on a straight line
basis with 18% corresponding to the Company's achievement of 90% of the Targets
and 80% corresponding to the Company's achievement of 100% of the Targets.
If the Company achieves between 100% and 125% of the Targets, the
Bonus will be equal to a percentage of the Executive's base salary then in
effect, with such percentage being between 80% and 100%, calculated on a
straight line basis with 80% corresponding to the Company's achievement of 100%
of the Targets and 100% corresponding to the Company's achievement of 125% of
the Targets.
The Targets will be set annually by the Board in its sole discretion
and communicated to the Executive in writing. The Targets for the 2006 fiscal
year are attached hereto as Schedule A, provided that the Executive shall be
entitled to receive only a pro rata bonus for such fiscal year, such pro rata
bonus to be calculated based upon the number of calendar days during that fiscal
year that the Executive was actively employed by the Company divided by 365, and
to be paid during the year following the year (as provided in the paragraph
below).
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 (the "Measurement Date") and in any case no later than the
earlier of (i) 30 days after such rendering of the Company's audited financial
statements for that fiscal year and (ii) June 30th of the year following that
fiscal year.
In order to receive any Bonus payment for a fiscal year, the Executive
must be actively employed on the last day of the fiscal year for which the Bonus
is being paid and not have had his employment terminated with "cause" pursuant
to Section 4(c) below prior to the payment of such Bonus.
(c) Employee Benefits. Subject to the Executive satisfying and
continuing to satisfy any plan or program eligibility requirements and other
terms and conditions of the plan or program, the Executive shall be entitled to
receive Company-paid medical and disability insurance, Company-paid term life
insurance (which shall provide for a death benefit payable to the Executive's
beneficiary), Company-paid holiday and vacation time, and other Company-paid
employee benefits (collectively, "EMPLOYEE BENEFITS"), at least equivalent to
those provided to other senior executives of the Company, subject to applicable
policy limitations and maximums.
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In addition, the Executive shall be entitled to participate as a senior
executive in any profit sharing plan and/or pension plan generally provided for
the executives of the Company or any of its subsidiaries. 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 option plan or restricted equity plan established by
the Company in which the Company's senior executives generally are permitted to
participate. The terms and conditions of the Executive's participation in,
and/or any award under, any such plan shall be in accordance with the applicable
controlling plan document and/or award agreement. The number and/or price of any
equity-based award granted to the Executive shall be determined by the Board.
Notwithstanding the foregoing, the Board will grant to the Executive awards
consisting of 200,000 stock appreciation rights from the price at the closing of
Company's initial public offering and 35,000 restricted stock units (in each
case, 50% time-vested in three equal annual installments and 50% vested in three
equal annual installments based on achievement of specified performance
criteria), the terms of such awards to be set forth in separate written
agreements.
(e) Expenses. The Company shall reimburse the Executive for all
reasonable expenses incurred by him in connection with the performance of his
duties under this Agreement, upon his presentation of appropriate vouchers
and/or documentation covering such expenses. Without limiting the generality of
the foregoing, the Company shall reimburse the Executive for all transportation,
lodging, food, and other expenses incurred by him in connection with traveling
on Company business.
(f) Automobile. The Company shall reimburse the Executive for up to
$800 per month for automobile expenses, including lease, insurance, and
maintenance costs.
(g) Withholdings. All payments made under this Section 3, or any other
provision of this Agreement, shall be subject to any and all federal, state, and
local taxes and other withholdings to the extent required by applicable law.
4. TERMINATION OF EMPLOYMENT.
(a) Disability. If the Executive shall fail or be unable to perform
his essential duties under this Agreement for any reason, including a physical
or mental disability, with or without reasonable accommodation, for one hundred
eighty (180) calendar days during any twelve (12) month period or for one
hundred (120) consecutive calendar days, then the Company may, by notice to the
Executive, terminate his employment under this Agreement as of the date of the
notice. Any such termination shall be made only in accordance with applicable
law. Nothing set forth in this Section 4(a) shall be construed as a waiver by
the Executive for seeking an extended leave of absence in excess of said
time-frame mentioned above, as a reasonable
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accommodation under applicable state and/or federal anti-discrimination laws (or
the Company's obligation to provide such). Further, nothing contained in this
Section 4(a) is to be construed as an admission that any such leave in excess of
the said time frame mentioned above is not reasonable as an accommodation. This
Section is not to be construed as a waiver of the Executive's right to pursue
legal action for any discharge that he deems improper based on a legally
protected characteristic (i.e., disability and/or handicap).
(b) Death. The Executive's employment under this Agreement shall
terminate automatically upon his death. However, any and all rights that may
exist under this Agreement and/or through any other pertinent plan documents,
with respect to vested benefits and/or accrued monetary amounts owed, shall be
transitioned, in accordance with the law, to the Executive's beneficiaries.
(c) Termination by the Company. The Company shall have the right,
exercisable at any time in its sole discretion, to terminate the employment of
the Executive for any reason whatsoever with or without "cause" (as defined
below). However, the Executive's employment shall not be deemed to have been
terminated with "cause" unless he shall have received written notice from the
Board at or prior to the termination of employment advising him of the specific
acts or omissions alleged to constitute "cause" and, in the case of those acts
or omissions that are reasonably capable of being corrected, those acts or
omissions continue uncorrected after he shall have had a reasonable opportunity
(not to exceed fifteen (15) calendar days) to correct them.
As used in this Agreement, termination with "CAUSE" shall mean only
the Executive's involuntary termination for reason of (i) the Executive's breach
of a fiduciary duty of loyalty owed to the Company or any of its subsidiaries,
(ii) the Executive's conviction of a crime or plea of guilty or no contest to a
crime, (iii) the Executive's gross negligence related to the performance of his
services under this Agreement, (iv) the Executive's willful misconduct,
including without limitation, embezzlement, (v) the Executive's material breach
of this Agreement, or (vi) conduct by the Executive beyond the scope of his
authority as an officer and employee of the Company, which conduct gives rise to
a hearing before any governmental department or agency seeking termination or
revocation of any governmental license. Notwithstanding the foregoing, the
Company's failure to achieve any performance level or objective shall not, by
itself, constitute "cause" under this Agreement, even if the achievement of such
performance level or objective is contained in a directive of the Board.
(d) Termination by the Executive. The Executive shall have the right
to terminate his employment with the Company, provided that he provides the
Company with at least one (1) month of advance written notice of such decision.
Upon the receipt of such notice from the Executive, the Company may withdraw any
and all duties from the Executive and exclude him from the Company's premises
during the notice period, during which time the Executive shall continue to paid
his Base Salary and continue to be eligible for employee benefits for the
remainder of the one-month notice period. The Executive's employment will be
terminated formally upon the expiration of such one-month notice period.
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(e) Severance. If the Company shall terminate the Executive's
employment without "cause" pursuant to Section 4(c) above during the Term, then,
upon the Executive's execution of the Release attached hereto as Exhibit A (or
in a substantially similar form as the Company deems necessary in order to
comply with then applicable law), the Executive shall be entitled to continue to
receive, as severance payments (such severance payments being the Executive's
sole entitlement upon any such termination), (i) his then Base Salary for one
(1) year immediately following such termination, payable in regular installments
consistent with its payroll practices in effect from time to time, and (ii) to
continued health insurance coverage for one (1) year immediately following such
termination at then existing employee contribution rates, which the Executive
shall pay (such continued coverage to run concurrently with any continued
coverage obligation under the federal law known as COBRA or any state
equivalent). Subject only to the Executive's delivery of an executed and
effective Release, the Company's obligation under this Section 4(e) shall be
absolute and unconditional, and the Executive shall be entitled to such
severance benefits regardless of the amount of compensation and benefits the
Executive may earn or be entitled to with respect to any other employment he may
obtain during the period for which severance payments are payable.
If the Executive's employment with the Company is terminated pursuant
to Sections 4(a) or 4(b) above, if the Company terminates the Executive's
employment with "cause" pursuant to Section 4(c) above, or if the Executive's
employment is terminated for any reason following the expiration of the Term,
then the Executive shall not be entitled to any further payments under this
Agreement, including Base Salary, Bonus, Employee Benefits, or Severance, except
as otherwise required by applicable law, including the payment of any amounts
owed to the Executive and any obligation that the Company may have to offer the
Executive continued benefit plan participation.
To the extent that any amount payable under this Agreement constitutes
amounts payable under a "nonqualified deferred compensation plan" (as defined in
Internal Revenue Code Section 409A (hereinafter, "Section 409A")) following a
"separation from service" (as defined in Section 409A), including any amount
payable under this Section 4, then, notwithstanding any other provision in this
Agreement to the contrary, such payment will not be made until the date that is
six months following the Executive's "separation from service," but only if the
Executive is then deemed to be a "specified employee" under Section 409A. On the
first day of the seventh month following separation of employment, all amounts
which have been held back for the 6-month period, will be paid to the Executive.
5. CHANGE OF CONTROL. If a "Change of Control" occurs, then the
Executive shall be entitled to Severance in accordance with Section 4(e) as if
his employment were terminated by the Company without "cause," unless such
successor or transferee continues the Executive's employment on substantially
equivalent terms. This Agreement shall be binding on any and all successors
and/or assigns of the Company.
"Change of Control" means (a) the Company's merger or consolidation
with another corporation or entity, (b) the Company's transfer of all or
substantially all of its assets to
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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 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. Section 1, et seq. The award of the
arbitrator shall be final and shall be the sole and exclusive remedy between the
parties regarding any claims, counterclaims, issues, or accountings (except as
provide in Section 7(h)). The arbitrator in any such dispute shall have
discretion to award attorneys' fees and costs as part of any resolution of a
claim arising under this Agreement. Except as otherwise provided by the
arbitrator in accordance with applicable law, each party hereto shall be
responsible for paying its own attorneys' fees and costs incurred in connection
with any dispute between the parties. To the extent inconsistent with the form
of arbitration agreement that the Company's employees generally are required to
enter into, including the Executive, this arbitration provision shall control.
Otherwise, to the extent compatible, effect shall be given to both this
arbitration provision and the Company's form of arbitration agreement that the
Executive will be required to execute.
7. OBLIGATIONS OF THE EXECUTIVE.
(a) Protectable Interests of the Company. The Executive acknowledges
that
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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, provided
that the Executive's employment is terminated before the expiration of the Term
(regardless of the reason for such termination and who the terminating party
is), then also for the one (1) year period immediately thereafter, the Executive
shall not, anywhere in the world, whether directly or indirectly, for himself or
for any third party, (i) engage in any business activity, (ii) provide
professional services to another person or entity (whether as an employee,
consultant, or otherwise), or (iii) become a partner, member, principal, or
stockholder having a 10% or greater interest in any entity, but in each such
case, only to the extent that such activity, person or entity is in competition
with the Business. For purposes of this Section 7(b) and Section 7(c) below,
"Business" shall mean the business of offering wireless data communication
services, including for the purpose of tracking and/or monitoring fixed or
mobile assets, the business of designing, manufacturing or distributing modems
that operate on such services, or any other business in which the Company is
materially engaged during the six (6) month period immediately preceding the
Executive's termination of employment. The Executive acknowledges and
understands that, due to the global nature of the Company's business and the
technological advancements in electronic communications around the world, any
geographic restriction of the Executive's obligation under this Section 7(b)
would be inappropriate and counter to the protections sought by the Company
hereunder.
(c) Non-Solicitation. During the Executive's employment and for the
two (2) year period immediately thereafter, the Executive shall not, anywhere in
the world, whether directly or indirectly, for himself or for any third party:
(i) solicit any business or contracts, or enter into any business or contract,
directly or indirectly, with any suppliers, licensees, customers, or partners of
the Company that (A) was a supplier, licensee, customer, or partner of the
Company at, or within six (6) months prior to, the termination of Executive's
employment, or (B) was a prospective supplier, licensee, customer, or partner of
the Business at the time of the Executive's termination of employment, and in
either case, for purposes of engaging in an activity that is in competition with
the Business; or (ii) solicit or recruit, directly or indirectly, any of the
Company's or its subsidiaries' employees, or any individuals who were employed
by the Company's or its subsidiaries' within three (3) months prior to the
termination of the Executive's employment, for employment or engagement (whether
as an employee, consultant, or otherwise) with a person or entity involved in
marketing or selling products or services competitive with the Business. The
Executive acknowledges and understands that, due to the global nature of the
Company's business and the technological advancements in electronic
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communications around the world, any geographic restriction of the Executive's
obligation under this Section 7(c) would be inappropriate and counter to the
protections sought by the Company hereunder.
Notwithstanding prior paragraphs (b) and (c), the following shall not
be deemed to be a violation of the Executive's non-competition and
non-solicitation covenants: (i) the Executive becoming employed by an entity
that is a corporate affiliate of the Company; and (ii) the Executive holding a
minority position (less than 10% interest) in any private investment or making
any investment in public securities.
(d) Confidential Information. The Executive acknowledges that during
the course of his employment with the Company, he has had and will continue to
have access to information about the Company, and its clients and suppliers,
that is confidential and/or proprietary in nature, and that belongs to the
Company. As such, at all times, both during the Term and thereafter, the
Executive will hold in the strictest confidence, and not use or attempt to use
except for the benefit of the Company, and not disclose to any other person or
entity (without the prior written authorization of the Company) any Confidential
Information (as defined below). Notwithstanding anything contained in this
Section 7(d), the Executive will be permitted to disclose any Confidential
Information to the extent required by validly issued legal process or court
order, provided that the Executive notifies the Company immediately of any such
legal process or court order in an effort to allow the Company to challenge such
legal process or court order, if the Company so elects, prior to the Executive's
disclosure of any Confidential Information.
For purposes of this Agreement, "CONFIDENTIAL INFORMATION" means any
confidential or proprietary information which belongs to the Company, or any of
its clients or suppliers, including without limitation, technical data, market
data, trade secrets, trademarks, service marks, copyrights, other intellectual
property, know-how, research, business plans, product information, projects,
services, client lists and information, client preferences, client transactions,
supplier lists and information, supplier rates, software, hardware, technology,
inventions, developments, processes, formulas, designs, drawings, marketing
methods and strategies, pricing strategies, sales methods, financial
information, revenue figures, account information, credit information, financing
arrangements, and other information disclosed to the Executive by the Company or
otherwise obtained by the Executive during the course of his employment,
directly or indirectly, and whether in writing, orally, or by electronic
records, drawings, pictures, or inspection of tangible property. "Confidential
Information" does not include any of the foregoing information which has entered
the public domain other than by a breach of this Agreement.
(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
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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
the State of New Jersey. If any of the restrictions contained or referenced in
this Section 7 is for any reason held by a court to be excessively broad as to
duration, activity, geographical scope, or subject, then such restriction shall
be construed or judicially modified so as to thereafter be limited or reduced to
the extent required to be enforceable in accordance with the laws of the State
of New Jersey (or other applicable law in the event that New Jersey law is not
being applied).
(h) Equitable Relief. The Executive acknowledges that the remedy at
law for his breach of this Section 7 will be inadequate, and that the damages
flowing from such breach will not be readily susceptible to being measured in
monetary terms. Accordingly, upon a violation of any part of this Section 7, the
Company shall be entitled to immediate injunctive relief (or other equitable
relief) from any court with proper jurisdiction and may obtain a temporary order
restraining any further violation. No bond or other security shall be required
in obtaining such equitable relief, and the Executive hereby consents to the
issuance of such equitable relief. Nothing in this Section 7(h) shall be deemed
to limit the Company's remedies at law or in equity for any breach by the
Executive of any of the parts of this Section 7 which may be pursued or availed
of by the Company.
8. MISCELLANEOUS.
(a) Notices. Any notice or other communication under this Agreement
shall be in writing and shall be considered given when delivered personally or
five days after mailed by registered mail, return receipt requested, to the
Executive and the Company at their respective addresses set forth above (or at
such other address as a party may specify by notice to the other).
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(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.
This Agreement may not be amended except by a written agreement signed
by the Company and the Executive. Notwithstanding the foregoing, the parties
hereto acknowledge that the requirements of Code Section 409A are still being
developed and interpreted by government agencies, that certain issues under Code
Section 409A remain unclear at this time, and that the parties hereto have made
a good faith effort to comply with current guidance under Code Section 409A.
Notwithstanding anything in this Agreement to the contrary, in the event that
amendments to this Agreement are necessary in order to comply with future
guidance or interpretations under Code Section 409A, including amendments
necessary to ensure that compensation will not be subject to Code Section 409A,
the Executive agrees that the Company shall be permitted to make such
amendments, on a prospective and/or retroactive basis, in its sole discretion.
(c) Severability. In the event that any provision of this Agreement,
or the application of any provision to the Executive or the Company, is held to
be unlawful or unenforceable by any court or arbitrator, then the remaining
portions of this Agreement shall remain in full force and effect and shall not
be invalidated or impaired in any manner.
(d) Waiver. No waiver by any party hereto of any breach of any term or
covenant in this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be or construed as a further or continuing waiver
of any such breach, or a waiver of any other term or covenant contained in this
Agreement.
(e) Governing Law. This Agreement shall be governed by and construed
in accordance with the law of the State of New Jersey applicable to agreements
made and to be made performed in New Jersey.
(f) Legal Costs. If either party commences legal action to enforce any
of its or his rights under this Agreement and substantially prevails (as
determined by the trier of fact) in that action, then the non-prevailing party
shall reimburse the prevailing party for the legal fees and other costs and
expenses incurred by the prevailing party in connection with the action. No
damages or other amounts owing to the Executive hereunder shall be reduced by
any earnings from any subsequent employment.
IN WITNESS WHEREOF, the parties hereto have executed this document as
of the 19th day of September, 2006.
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ORBCOMM Inc. Xxxxxx X. Xxxxxxxxxx
By: /s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------- ----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
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Title: Chief Executive Officer
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EXHIBIT A -- GENERAL RELEASE
FOR AND IN CONSIDERATION OF the employment agreement to which this General
Release is attached, I, XXXXXX X. XXXXXXXXXX, agree, on behalf of myself, my
heirs, executors, administrators, and assigns, to release and discharge ORBCOMM
INC. (the "Company"), and its current and former officers, directors, employees,
agents, owners, subsidiaries, divisions, affiliates, parents, successors, and
assigns (the "Released Parties") from any and all manner of actions and causes
of action, suits, debts, dues, accounts, bonds, covenants, contracts,
agreements, judgments, charges, claims, and demands whatsoever ("Losses") which
I, my heirs, executors, administrators, and assigns have, or may hereafter have,
against the Released Parties or any of them arising out of or by reason of any
cause, matter, or thing whatsoever from the beginning of the world to the date
hereof, including without limitation, my employment agreement, my employment by
the Company and the cessation thereof, and all matters arising under any
federal, state, or local statute, rule, or regulation, or principle of contract
law or common law, including but not limited to, the Worker Adjustment and
Retraining Notification Act of 1988, as amended, 29 U.S.C. Sections 2101 et
seq., the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. Sections 201
et seq., the Family and Medical Leave Act of 1993, as amended, 29 U.S.C.
Sections 2601 et seq., Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. Sections 2000e et seq., the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. Sections 621 et seq. (the "ADEA"), the Americans with
Disabilities Act of 1990, as amended, 42 U.S.C. Sections 12101 et seq., the
Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. Sections
1001 et seq., the Virginia Human Rights Act, as amended, Va. Code Xxx. Sections
2.1-714 et seq., the Virginia Persons with Disabilities Act, as amended, Va.
Code Xxx. Sections 51.5-1 et seq., the New Jersey Law Against Discrimination, as
amended, N.J. Stat. Xxx. Sections 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 which 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 represent and warrant that I fully understand the terms of this General
Release, that I have had the benefit of advice of counsel or have knowingly
waived such advice, and that I knowingly and voluntarily, of my own free will,
without any duress, being fully informed, and after due deliberation, accepts
its terms and sign the same as my own free act. I understand that as a result of
executing this General Release, I will not have the right to assert that the
Company violated any of my rights in connection with my employment agreement, my
employment, or with the termination of such employment.
I affirm that I have not filed, and agree not to initiate or cause to be
initiated on my behalf, any complaint, charge, claim, or proceeding against the
Released Parties before any federal, state, or local agency, court, or other
body relating to my employment agreement, my employment, or the cessation
thereof, and agree not to voluntarily participate in such a proceeding. However,
nothing in this General Release shall preclude or prevent me from filing a
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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 (THE "RELEASE EFFECTIVE DATE").
This General Release shall be governed by the laws of the State of New
Jersey without giving effect to its conflict of laws principles.
------------------------------------- ----------------------------------------
XXXXXX X. XXXXXXXXXX DATE
STATE OF )
------------------
: ss.:
COUNTY OF
----------------- )
On the ___ day of ___________________ in the year 200__, before me,
the undersigned, personally appeared XXXXXX X. XXXXXXXXXX, personally known to
me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument, and acknowledged to me that
he executed the same in his capacity, and that by his signature on the
instrument he executed such instrument, and that such individual made such
appearance before the undersigned.
----------------------------------------
Notary Public
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EXHIBIT A TO EMPLOYMENT AGREEMENT-- 2006 PERFORMANCE TARGETS
XXXXXX XXXXXXXXXX
SUMMARY OF COMPENSATION 2006
----------------------- --------
Base Salary $270,000
% Chg
Bonus at performance threholds 50% NA 50% Ebitda
Minimum $ 48,600 18% 24,300 24,300
Target $216,000 80% 108,000 108,000
Superperformance $270,000 100% 135,000 135,000
INCENTIVE COMPENSATION TARGETS 2006
------------------------------ --------
Net Subscriber Additions [***]
EOP Subscribers [***]
EBITDA (excludes 2006 LTIP grants) [***]
ANNUAL CASH BONUS TARGETS BONUS % OF BASE
----------------- -------- --------- ---------
Net Subscriber Additions
Minimum [***] $ 24,300 9.0%
% of target 90.0%
Target [***] $108,000 40.0%
% of target 100.0%
Super Performance [***] $135,000 50.0%
% of target 125.0%
EBITDA
Minimum [***] $ 24,300 9.0%
% of target 110.0%
Target [***] $108,000 40.0%
% of target 100.0%
Super Performance [***] $135,000 50.0%
% of target 75.2%
Note: 2006 Bonus to be pro rated as set forth in the Employment Agreement to
which this Exhibit is attached.
