SEVERANCE PROTECTION AGREEMENT
Exhibit 10.2
This Severance Protection Agreement (the “Agreement”) is made and entered into by and between
Xxxxxxx Xxxxxxx (the “Employee”) and DigitalGlobe, Inc., a Delaware corporation (the “Company”),
effective as of September 30, 2011.
RECITALS
A. Employee is being hired as a member of the Company’s executive and management team.
B. The Company’s Board of Directors (the “Board”) believes that it is in the best interests of
the Company and its stockholders to provide Employee with a severance benefit in the event
Employee’s employment is terminated without Cause (as defined below) or Employee resigns his or her
employment for Good Reason (as defined below) in order to avoid distraction of Employee due to
uncertainty about his or her future role with the Company.
C. To accomplish the foregoing objectives, the Board has directed the Company, upon execution
of this Agreement by Employee, to agree to the terms provided in this Agreement.
D. Certain capitalized terms used in the Agreement are defined in Section 5 below.
In consideration of the mutual covenants herein contained, and in consideration of the
continuing employment of Employee by the Company, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. At-Will Employment; Term of Agreement. The Company and Employee acknowledge that
Employee’s employment is and shall continue to be at-will, as defined under applicable law.
Nothing in this Agreement shall confer upon Employee any right to continued employment with the
Company or any successor to the Company. If Employee’s employment terminates for any reason,
Employee shall not be entitled to any payments or benefits other than as provided by this
Agreement, or as may otherwise be available in accordance with the terms of Employee’s other
written employment-related agreements with the Company (if any) and/or the Company’s established
employee plans and written policies at the time of termination (collectively, the “Other
Severance-Related Agreements”). The term of this Agreement
shall continue through and including
August 31, 2012; provided, however, that commencing August 31, 2012 and on each anniversary thereof, the term
shall be automatically extended for an additional one-year period unless the Company or Employee
provides the other party at least 180 days prior written notice that the term shall not be so
extended; provided, further, that if a Change in Control closes before the term otherwise ends, the
term shall continue until two (2) years following the closing of such Change in Control. A
termination of the terms of this Agreement pursuant to the preceding sentence shall be effective
for all purposes, except that such termination shall not affect the payment or provision of
compensation or benefits on account of a termination of employment occurring prior to the
termination of the term of this Agreement.
2. Severance.
2.1 Involuntary Termination Benefit — Termination Prior to a Change in Control. Upon
Employee’s involuntary termination of employment by the Company (other than a termination for Cause
or due to death or Disability) or Employee’s termination of employment with the Company for Good
Reason prior to a Change in Control, Employee shall be entitled to a lump sum payment in an amount
equal to one (1) times the sum of (i) Employee’s annual Base Salary as of the date of such
termination, plus (ii) Employee’s Bonus Amount.
2.2 Involuntary Termination Benefit — Termination Upon or Following a Change in
Control. Upon Employee’s involuntary termination of employment by the Company (other than a
termination for Cause or due to death or Disability) or Employee’s termination of employment with
the Company for Good Reason upon or following a Change in Control, Employee shall be entitled to a
lump sum payment in an amount equal to one and one-half (1.5) times the sum of (i) Employee’s
annual Base Salary as of the date of such termination, plus (ii) Employee’s Bonus Amount.
2.3 Welfare Benefits. In the event Employee is entitled to benefits pursuant to
Section 2.1 or 2.2 above, the Company shall continue to provide all welfare benefits provided to
Employee immediately before such termination (including, without limitation, health and life
insurance, but excluding disability insurance) for a period following Employee’s termination of
employment equal to the period with respect to which Employee’s Base Salary is paid as severance,
at the Company’s sole cost; provided, however, that to the extent Employee becomes re-employed and
eligible for benefits with another employer prior to the expiration of such period, Employee will
elect such benefits and promptly notify the Company so that the Company will have no further
obligation to provide benefits under this Section 2.3 unless, and then only to the extent that, the
benefits that are being provided by the Company are more favorable than such benefits provided by
the other company.
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2.4 Treatment of Equity Awards Upon a Change in Control. Upon the occurrence of a
Change in Control, all of Employee’s equity awards in the Company (including, without limitation,
any stock options, restricted stock units, and restricted stock awards) shall vest and, to the
extent applicable, shall (i) become exercisable and (ii) remain outstanding for the period
specified in the applicable award agreement.
2.5 Accrued Obligations. In all events, promptly following Employee’s termination of
employment for any reason, the Company shall pay to Employee (or, as applicable, Employee’s
estate): (a) any unpaid portion of Employee’s accrued Base Salary and accrued Paid Time Off; (b)
any amounts payable to Employee pursuant to the terms of any pension or welfare benefit plan, and
(c) any expense reimbursements payable pursuant to the Company’s reimbursement policy.
3. Release of Claims. The payment and provision of any and all severance benefits
pursuant to this Agreement shall be conditioned upon and subject to execution of a Release of
Claims by Employee in the form attached to this Agreement as Exhibit A (the “Release of Claims”)
within the time period after the effective date of Employee’s termination of employment specified
in the Release of Claims. All lump-sum payments due pursuant to this Agreement shall be paid sixty
(60) days after the effective date of Employee’s termination of employment, provided that Employee
signs and returns the Release of Claims to the Company within the time period specified in the
Release of Claims and does not revoke such Release of Claims to the extent a revocation option is
provided in such Release of Claims. The payments described in Section 2.5 are not subject to
Employee’s execution of a Release of Claims.
4. Termination for Cause; Voluntary Resignation Other Than for Good Reason; Death or
Disability. Upon Employee’s termination for Cause or Employee’s voluntary resignation other
than for Good Reason, or Employee’s termination of employment due to death or Disability, Employee
shall not be entitled to any severance payments or to any other benefit under the terms of this
Agreement.
5. Definition of Terms. The following terms referred to in this Agreement shall have
the following meanings:
(a) Base Salary. “Base Salary” shall mean Employee’s gross annualized base salary at
the time of termination of employment, excluding any relocation allowance, bonuses or incentive
compensation, or similar benefits provided to Employee.
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(b) Bonus Amount. “Bonus Amount” shall mean the average of actual annual cash bonuses
payable to Employee under any Company “Success Sharing Plan” or similar program with respect to the
two fiscal years immediately preceding the year which the Employee’s employment terminates (or, if
Employee was an employee for less than two full fiscal years preceding such termination, Employee’s
actual annual cash bonus for the fiscal year preceding the year of termination); provided, however,
in the event Section 2.2 applies, the Bonus Amount shall be the Employee’s target cash bonus for
the year in which the Change in Control occurs. In no event shall any equity-based compensation
provided to Employee at any time (including without limitation any stock options or restricted
stock (if any) granted to Employee at any time as a long-term incentive award under any Success
Sharing Plan or otherwise), any other cash incentive awards granted outside of an approved Success
Sharing Plan or similar program (if any), or any other amounts, be considered as part of the “Bonus
Amount”.
(c) Change in Control. “Change in Control” shall mean the occurrence of any of the
following events:
(i) Any person (other than persons who are employees of the Company at any time more than one
year before a transaction) becomes the beneficial owner, directly or indirectly, of securities of
the Company representing 50% or more of the combined voting power of the Company’s then outstanding
securities. In applying the preceding sentence, (A) securities acquired directly from the Company
or its affiliates by or for the person shall not be taken into account, and (B) an agreement to
vote securities shall be disregarded unless its ultimate purpose is to cause what would otherwise
be Change in Control, as reasonably determined by the Board;
(ii) The Company consummates a merger, or consolidation of the Company with any other
corporation unless: (a) the
voting securities of the Company outstanding immediately before the merger or consolidation
would continue to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after such merger or
consolidation; and (b) no person (other than persons who are employees at any time more than one
year before a transaction) becomes the beneficial owner, directly or indirectly, of securities of
the Company representing 50% or more of the combined voting power of the Company’s then outstanding
securities;
(iii) The stockholders of the Company approve an agreement for the sale or disposition by the
Company of all, or substantially all, of the Company’s assets; or
(iv) The stockholders of the Company approve a plan or proposal for liquidation or dissolution
of the Company.
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Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred by virtue
of the consummation of any transaction or series of integrated transactions immediately following
which the record holders of the common stock of the Company immediately prior to such transaction
or series of transactions continue to have substantially the same proportionate ownership in an
entity which owns all or substantially all of the assets of the Company immediately following such
transaction or series of transactions.
(d) Cause. “Cause” shall mean:
(i) conviction of a felony or a crime involving fraud or moral turpitude; or
(ii) theft, material act of dishonesty or fraud, intentional falsification of any employment
or Company records, or commission of any criminal act which impairs Employee’s ability to perform
appropriate employment duties for the Company; or
(iii) intentional or reckless conduct or gross negligence materially harmful to the Company or
the successor to the Company after a Change in Control, including violation of a non-competition or
confidentiality agreement; or
(iv) willful failure to follow lawful instructions of the person or body to which Employee
reports; or
(v) gross negligence or willful misconduct in the performance of Employee’s assigned duties.
Cause shall not include mere unsatisfactory performance in the achievement of Employee’s
job objectives.
(e) Disability. “Disability” means a physical or mental illness, injury, or condition
that prevents Employee from performing substantially all of Employee’s duties associated with
Employee’s position or title with the Company for at least 90 days in a 12-month period.
(f) Resignation for Good Reason. Resignation for “Good Reason” shall mean Employee’s
voluntary termination, upon 30 days prior written notice to the Company promptly following:
(i) a material reduction in Employee’s job duties, responsibilities and requirements
inconsistent with Employee’s position with the Company and Employee’s prior duties,
responsibilities and requirements;
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(ii) any reduction of Employee’s base compensation; or
(iii) the Employee’s refusal to relocate to another Company facility or location more than
thirty (30) miles from such Company’s headquarters location;
6. Golden Parachute Provisions. Notwithstanding any other provision of this
Agreement, in the event that it shall be determined that the aggregate payments or distributions by
the Company to or for the benefit of Employee, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (the “Payments”), constitute
“excess parachute payments” (as such term is defined under Section 280G of the Internal Revenue
Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated
thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by
Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest
or penalties with respect to such excise tax (the total excise tax, together with any interest and
penalties, are hereinafter collectively referred to as the “Excise Tax”)), then the Payments shall
be either (a) delivered in full, or (b) delivered to such lesser extent that would result in no
portion of the
Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into
account the applicable Federal, state or local income and employment taxes and the Excise Tax,
results in the receipt by Employee, on an after-tax basis, of the greatest amount of benefits,
notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. In the
event that the Payments are to be reduced pursuant to this Section 6, such Payments shall be
reduced such that the reduction of compensation to be provided to Employee as a result of this
Section 6 is minimized. In applying this principle, the reduction shall be made in a manner
consistent with the requirements of Section 409A of the Code and where two economically equivalent
amounts are subject to reduction but payable at different times, such amounts shall be reduced on a
pro rata basis (but not below zero). All calculations required pursuant to this Section 6 shall be
performed in good faith by nationally recognized registered public accountants or tax counsel
selected by the Company.
7. Successors. Any successor to the Company (whether direct or indirect and whether
by purchase, lease, merger, consolidation, liquidation or otherwise) to all or substantially all of
the Company’s business and/or assets shall assume the obligations under this Agreement and agree
expressly to perform the obligations under this Agreement in the same manner and to the same extent
as the Company would be required to perform such obligations in the absence of a succession. The
terms of this Agreement and all of Employee’s rights hereunder shall inure to the benefit of, and
be enforceable by, Employee’s personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
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8. Notice. Notices and all other communications contemplated by this Agreement shall
be in writing and shall be deemed to have been duly given when personally delivered or when mailed
by U.S. registered or certified mail, return receipt requested and postage prepaid. Mailed notices
to Employee shall be addressed to Employee at the home address which Employee most recently
communicated to the Company in writing. In the case of the Company, mailed notices shall be
addressed to its corporate headquarters, and all notices shall be directed to the attention of its
General Counsel.
9. Proprietary Information, Invention and Non-Competition Agreement. Employee
acknowledges and agrees that the provision of benefits hereunder by the Company is subject to
Employee’s compliance
with the Company’s Proprietary Information, Invention and Non-Competition Agreement attached
hereto as Exhibit B, and that no benefits shall be provided hereunder in the event Employee
violates such Agreement.
10. Miscellaneous Provisions.
(a) No Duty to Mitigate. Employee shall not be required to mitigate the amount of any
benefit contemplated by this Agreement (whether by seeking new employment or in any other manner),
nor, except as otherwise provided in this Agreement (including without limitation, Section 2.3 and
Section 10(d)), shall any such benefit be reduced by any earnings or benefits that Employee may
receive from any other source.
(b) Waiver. No provision of this Agreement shall be modified, waived or discharged
unless the modification, waiver or discharge is agreed to in writing and signed by Employee and by
an authorized officer of the Company (other than Employee). No waiver by either party of any
breach of, or of compliance with, any condition or provision of this Agreement by the other party
shall be considered a waiver of any other condition or provision or of the same condition or
provision at another time.
(c) Entire Agreement. This Agreement constitutes the entire understanding between the
parties with respect to Employee’s severance pay, benefits and privileges in the event of a
termination of Employee’s employment with the Company, superseding all negotiations, prior
discussions and agreements, written or oral, concerning said severance arrangements, other than the
Other Severance-Related Arrangements.
(d) Non-Duplication of Benefits. Any compensation or benefits payable under the terms
of this Agreement will be offset and not augmented by other compensation or benefits of the same or
similar type payable under any Other Severance-Related Arrangement or under applicable law. It is
intended that this Agreement not duplicate benefits Employee is entitled to under the Company’s
regular severance policy, any related policies, any other contracts, agreements or arrangements
between Employee and the Company, or applicable law.
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(e) Choice of Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Colorado without reference to conflict of
laws provisions.
(f) Severability. If any term or provision of this Agreement or the application
thereof to any circumstance shall, in any jurisdiction and to any extent, be invalid or
unenforceable, such term or provision shall be ineffective as to such jurisdiction to the extent of
such invalidity or unenforceability without invalidating or rendering unenforceable the remaining
terms and provisions of this Agreement or the application of such terms and provisions to
circumstances other than those as to which it is held invalid or unenforceable, and a suitable and
equitable term or provision shall be substituted therefor to carry out, insofar as may be valid and
enforceable, the intent and purpose of the invalid or unenforceable term or provision.
(g) Jurisdiction, Venue and Waiver of Jury Trial. EMPLOYEE AND THE COMPANY AGREE THAT
ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING OUT OF THIS AGREEMENT, ITS VALIDITY OR
PERFORMANCE, AT THE SOLE OPTION OF EMPLOYEE AND THE COMPANY, THEIR SUCCESSORS AND ASSIGNS, SHALL BE
INITIATED AND PROSECUTED AS TO ALL PARTIES AND THEIR HEIRS, SUCCESSORS AND ASSIGNS IN DENVER,
COLORADO. EMPLOYEE AND THE COMPANY EACH CONSENTS TO AND SUBMITS TO THE EXERCISE OF JURISDICTION
OVER HIS/HER OR ITS PERSON BY ANY COURT SITUATED IN DENVER, COLORADO, HAVING JURISDICTION OVER THE
SUBJECT MATTER, WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL DIRECTED TO EMPLOYEE AND THE COMPANY AT THEIR
ADDRESSES SET FORTH ABOVE AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) BUSINESS
DAYS AFTER SUCH PROCESS SHALL HAVE BEEN DEPOSITED IN THE U.S. MAIL, POSTAGE PREPAID. EACH PARTY
WAIVES TRIAL BY JURY, ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO
VENUE OF ANY ACTION INSTITUTED HEREUNDER, AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY THE COURT.
(h) Legal Fees and Expenses. The parties shall bear their own expenses, legal fees
and other fees incurred in connection with this Agreement.
(i) No Assignment of Benefits. The rights of any person to payments or benefits under
this Agreement shall not be made subject to option or assignment, either by voluntary or
involuntary assignment or by operation of law, including (without limitation) bankruptcy,
garnishment,
attachment or other creditor’s process, and any action in violation of this subsection (i)
shall be void.
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(j) Employment Taxes. Any payments made pursuant to this Agreement will be subject to
withholding of applicable income and employment taxes.
(k) Assignment by Company. The Company may assign its rights under this Agreement to
an affiliate, and an affiliate may assign its rights under this Agreement to another affiliate of
the Company or to the Company; provided, however, that no assignment shall be made if the net worth
of the assignee is less than the net worth of the Company at the time of assignment. In the case
of any such assignment, the term “Company” when used in a section of this Agreement shall mean the
corporation that actually employs Employee.
(l) Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together will constitute one and the same instrument.
(m) Section 409A. This Agreement is intended to comply with the requirements of
Section 409A of the Code and shall be interpreted and construed consistently with such intent. The
payments to Employee pursuant to this Agreement are also intended to be exempt from Section 409A of
the Code to the maximum extent possible, under either the separation pay exemption pursuant to
Treasury regulation §1.409A-1(b)(9)(iii) or as short-term deferrals pursuant to Treasury regulation
§1.409A-1(b)(4), and for this purpose each payment shall be considered a separate payment. In the
event the terms of this Agreement would subject Employee to taxes or penalties under Section 409A
of the Code (“409A Penalties”), the Company and Employee shall cooperate diligently to amend the
terms of the Agreement to avoid such 409A Penalties, to the extent possible; provided that in no
event shall the Company be responsible for any 409A Penalties that arise in connection with any
amounts payable under this Agreement. To the extent any amounts under this Agreement are payable
by reference to Employee’s “termination of employment,” such term shall be deemed to refer to
Executive’s “separation from service,” within the meaning of Section 409A of the Code.
Notwithstanding any other provision in this Agreement, if Employee is a “specified employee,” as
defined in Section 409A of the Code, as of the date of Executive’s separation from service, then to
the extent any amount payable under this Agreement (i) constitutes the payment of
nonqualified deferred compensation, within the meaning of Section 409A of the Code, (ii) is
payable upon Employee’s separation from service and (iii) under the terms of this Agreement would
be payable prior to the six-month anniversary of Executive’s separation from service, such payment
shall be delayed until the earlier to occur of (a) the six-month anniversary of the separation from
service or (b) the date of Employee’s death.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the
Company by its duly authorized officer, as of the day and year first above written.
| DIGITALGLOBE, INC. | Xxxxxxx Xxxxxxx | |||
By:
|
/s/ Xxxxxx Xxxxxxx | /s/ Xxxxxxx Xxxxxxx | ||
| Employee Signature | ||||
Title:
|
E.V.P. & Chief Financial Officer | |||
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Exhibit A
RELEASE OF CLAIMS
This Release of Claims is entered into by and between DigitalGlobe, Inc., a Colorado
corporation (the “Company”), and Xxxxxxx Xxxxxxx (“Employee”). It is entered into pursuant to the
terms of a Severance Protection Agreement (the “Agreement”) between Employee and Company dated
_____,
_____
and in order to resolve amicably all matters between Employee and the
Company concerning the Agreement and Employee’s termination of employment with the Company and
benefits payable to Employee under the terms of the Agreement.
1. Termination of Employment. Employee’s employment with the Company has been
terminated as a result of a Change in Control, an involuntary termination without Cause or a
voluntary resignation for Good Reason, as defined in the Agreement, by which Employee became
eligible for benefits upon termination of employment.
2. Severance Pay. Provided that Employee executes this Agreement within 21 days after
the termination of Employee’s employment with the Company and Employee does not revoke this
Agreement in accordance with Paragraph 10 of this Agreement, the Company agrees to pay to Employee
all monetary amounts due to Employee under the terms of the Agreement, at the time specified
therein. Employee is also eligible for certain other continuation of benefits under the terms of
the Agreement. Employee acknowledges that Employee has no entitlement to said benefits except
according to the terms of the Agreement, which includes a requirement that Employee execute this
Release of Claims.
3. Sole Entitlement. Employee acknowledges and agrees that no other monies or
benefits are owing to Employee except as set forth in the Agreement.
4. Return of Property and Documents. Employee states that Employee has returned to
the Company all property and documents of the Company which were in Employee’s possession or
control, including without limitation access cards, Company-provided credit cards, computer
equipment and software.
5. Confidentiality, Nondisparagement, Noncompetition, and Nonsolicitation Agreement.
Employee agrees to abide by the terms of any confidentiality, nondisparagement, nonsolicitation,
and non-competition agreement(s) that Employee previously executed in connection with his or her
employment with the Company. Employee agrees not to make any communications or engage in any
conduct that is or can reasonably be construed to be disparaging of the Company, its officers,
directors, employees, agents, stockholders, products or services. The Company agrees not to make
any communications or engage in any conduct that is or can reasonably be construed to be
disparaging of Employee. For a period of two (2) years following Employee’s termination of
employment with the Company, Employee agrees not to solicit, directly or indirectly, any employees
of the Company, for employment with any other employer.
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6. Release. Employee (for him/herself, his/her agents, heirs, successors, assigns,
executors and/or administrators) does hereby and forever release and discharge the Company and its
past and present parent, subsidiary and affiliated corporations, divisions or other related
entities, as well as the successors, shareholders, officers, directors, heirs, predecessors,
assigns, agents, employees, attorneys and representatives of each of them, past or present
(hereinafter the “Releasees”) from any and all causes of action, actions, judgments, liens, debts,
contracts, indebtedness, damages, losses, claims, liabilities, rights, interests and demands of
whatsoever kind or character, known or unknown, suspected to exist or not suspected to exist,
anticipated or not anticipated, whether or not heretofore brought before any state or federal court
or before any state or federal agency or other governmental entity, which Employee has or may have
against any released person or entity by reason of any and all acts, omissions, events or facts
occurring or existing prior to the date hereof, including, without limitation, all claims
attributable to the employment of Employee, all claims attributable to the termination of that
employment, and all claims arising under any federal, state or other governmental statute,
regulation or ordinance or common law, such as, for example and without limitation, Title VII of
the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act which prohibits discrimination on the basis of age over 40, and wrongful termination
claims, excepting only those obligations expressly recited to be performed hereunder.
In light of the intention of Employee (for him/herself, his/her agents, heirs, successors,
assigns, executors and/or administrators) that this release extend to any and all claims of
whatsoever kind or character, known or
unknown, Employee expressly waives any and all rights granted by California Civil Code Section
1542 or any other analogous federal or state law or regulation. Section 1542 reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Notwithstanding the foregoing, nothing in this Agreement shall be construed to prevent
Employee from filing a charge with, or participating in any proceeding or investigation by,
the Equal Employment Opportunity Commission or affiliated state agency. However, Employee
acknowledges that, in accordance with this Release, he or she has no right to recover any
monies on behalf of him/herself, his/her agents, heirs, successors, assigns, executors
and/or administrators in connection with, or as a result of, such charge, investigation, or
proceeding.
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7. No Actions Pending. Employee agrees that he/she has not filed, nor will
he/she file in the future, any claims, actions or lawsuits against any of the Releasees
relating to Employee’s employment with the Company, or the termination thereof.
8. No Admissions. Nothing contained herein shall be construed as an admission
of wrongdoing or liability by any party hereto.
9. Entire Agreement; Miscellaneous. This Agreement constitutes a single
integrated contract expressing the entire agreement of the parties with respect to the
subject matter specifically addressed herein and supersedes all prior and contemporaneous
oral and written agreements and discussions with respect to the subject matter hereof.
There are no other agreements, written or oral, express or implied, between the parties
hereto, concerning the subject matter hereof, except as set forth herein. This Agreement
may be amended or modified only by an agreement in writing, and it shall be interpreted and
enforced according to the laws of the State of Colorado. Should any of the provisions of
the Agreement be determined to be invalid by
a court of competent jurisdiction, it is agreed that this shall not affect the
enforceability of the other provisions herein.
10. Waiting Period and Right of Revocation. EMPLOYEE ACKNOWLEDGES THAT
EMPLOYEE IS AWARE AND IS HEREBY ADVISED THAT EMPLOYEE HAS THE RIGHT TO CONSIDER THIS
AGREEMENT FOR TWENTY-ONE DAYS BEFORE SIGNING IT, ALTHOUGH EMPLOYEE IS NOT REQUIRED TO WAIT
THE ENTIRE TWENTY-ONE DAY PERIOD; AND THAT IF EMPLOYEE SIGNS THIS AGREEMENT PRIOR TO THE
EXPIRATION OF TWENTY-ONE DAYS, EMPLOYEE IS WAIVING THIS RIGHT FREELY AND VOLUNTARILY.
EMPLOYEE ALSO ACKNOWLEDGES THAT EMPLOYEE IS AWARE AND IS HEREBY ADVISED OF EMPLOYEE’S RIGHT
TO REVOKE THIS AGREEMENT FOR A PERIOD OF SEVEN DAYS FOLLOWING THE SIGNING OF THIS AGREEMENT
AND THAT IT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS
EXPIRED. TO REVOKE THIS AGREEMENT, EMPLOYEE MUST NOTIFY THE COMPANY IN WRITING WITHIN
SEVEN DAYS OF SIGNING IT.
11. Attorney Advice. EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE IS AWARE OF
EMPLOYEE’S RIGHT TO CONSULT AN ATTORNEY, THAT EMPLOYEE HAS BEEN ADVISED TO CONSULT WITH AN
ATTORNEY, AND THAT EMPLOYEE HAS HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY, IF
DESIRED, PRIOR TO SIGNING THIS AGREEMENT.
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12. Understanding of Agreement. Employee states that Employee has carefully
read this Agreement, that Employee fully understands its final and binding effect, that the
only promises made to Employee to sign this Agreement are those stated above, and that
Employee is signing this Agreement voluntarily.
Dated: |
||||
| [Employee] |
| Dated: | DIGITALGLOBE, INC. | |||||
| By: | ||||||
| Title: | ||||||
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Exhibit B
Employee Proprietary Information, Invention
and Non-Competition Agreement
and Non-Competition Agreement
Xxxxxxx Xxxxxxx
|
Longmont, CO | |
[Employee]
|
[Location] |
I acknowledge that, during my employment with DigitalGlobe Inc, (DigitalGlobe) I shall be in a
position of confidence and trust, and shall have access to various data, technical developments and
improvements, processes, tools, customer data and relationships, business plans, customer lists,
marketing programs, price lists, salary and human resource information and other trade secrets
and/or confidential information relating to the business of DigitalGlobe. I further recognize that,
in providing highly specialized services for a wide variety of customers within an increasingly
competitive global market, DigitalGlobe has a proprietary interest in all trade secret and other
confidential information that I may acquire during the course of my employment which, if disclosed
to competitors, would cause DigitalGlobe to suffer immediate and substantial injury. In addition, I
acknowledge that I am a member of DigitalGlobe’s executive and management staff. Thus, I recognize
that it is in DigitalGlobe’s legitimate business interest to restrict my use of such trade secrets
and confidential or proprietary information for any purpose other than the discharge of my
employment duties at DigitalGlobe, and accordingly enter into this Proprietary Information,
Invention and Non-Competition Agreement (herein “Agreement”).
Therefore, in consideration of my employment (it being understood that this Agreement does not
itself give me rights to employment or continued employment) by DigitalGlobe or by any of its
subsidiaries, including any business entity of DigitalGlobe or any of its subsidiaries (such
corporation, its successors and the subsidiaries of such corporation or of its successors being
hereinafter individually and collectively called ‘DigitalGlobe° or “the Company”), I agree as
follows:
| 1. | I will not directly or indirectly during or after the term of my employment: |
| (a) | transfer or allow to be transferred, any information that is classified for
purposes of national security, to any person, firm or organization not authorized to
receive it; or |
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| (b) | transfer, or allow to be transferred, any of the Company’s proprietary data
or information, whether relating to products, equipment, inventions, ideas, designs,
processes, research, software, customers, personnel, or otherwise, and including,
without limitation, any of the Company’s manufacturing, technical or scientific
know-how, methodologies, customers’ data, marketing programs, suppliers, pricing or
bidding strategies, bids or proposals submitted or contemplated, customer contracts,
and salary and human resource information or practices, to any person, firm or
organization not authorized by the Company to receive it, or to use any of such
proprietary data or information other than for the sole benefit of the Company; or |
| (c) | transfer, or allow to be transferred, any drawing, sketch, layout, formula,
specification, report, written manufacturing, technical, or business information or
the like owned by the Company, or any copy thereof, to any person, firm or
organization not authorized by the Company to receive it; or |
||
| (d) | transfer, or allow to be transferred, any information that is not generally
known outside the Company or that is designated by the Company as “Confidential” or
°Restricted Confidential” or is similarly designated, to any person, firm or
organization not authorized by the Company to receive it, or to use any of such
designated information other than for the sole benefit of the Company; or |
||
| (e) | transfer, or allow to be transferred, any information not generally publicly
known that is designated by a third party as “limited”, “private”, “confidential”,
°proprietary” or is similarly designated, that the Company is contractually or
otherwise obligated to protect from unauthorized disclosure, to any person, firm or
organization not authorized by the Company to receive it, or use any such third party
information other than for the benefit of the Company for purposes authorized by the
Company; or |
||
| (f) | transfer, or allow to be transferred, any information pertaining to
technology that has been deemed to be “controlled technology” as defined by the United
States Department of
Commerce, Bureau of Export Administration (BXA). |
| 2. | I will keep myself informed of the Company’s policies and procedures for safeguarding
Company-controlled property, including all proprietary data and information, and will strictly
comply therewith at all times. I will not, except when authorized by the Company, remove any
Company-controlled property from Company premises. I will return to the Company, immediately
upon termination of my employment or upon my transfer within the Company, all
Company-controlled property in my possession or control. |
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| 3. | I will grant and do hereby grant to the Company the sole and exclusive ownership of
(including the sole and exclusive right to reproduce, use or disclose for any purpose) any and
all reports, articles, books, recordings, audio-visual works, drawings, blueprints, data,
software, firmware, writings and technical information and copyrights in the foregoing made or
prepared by me alone or with others during the term of my employment, whether or not made or
prepared in the course of my employment, that relate to the Company’s business or to
apparatus, compositions of matter or methods pertaining to the Company’s business. I
acknowledge that all such materials are the property of the Company within the scope of
paragraph 1(b) and 1(c) above. |
| 4. | I will advise the Company’s Legal Department in writing in detail of each invention, whether
or not patentable, made or conceived during the term of my employment by me alone, or with
others. I will assign, and do hereby assign, to the Company or to its nominee, all my right,
title and interest in each invention without further consideration. During or after the term
of my employment, I will execute, acknowledge and deliver such assignments, affidavits, and
other instruments prepared by the Company or its nominee, and do such other things as will
assist the Company, or its nominee to obtain patents on such invention in any and all
countries, all without further consideration, other than reimbursement of my expenses. I
acknowledge that the expenses for which I might request reimbursement from the Company be
limited to mailing charges and notary fees and other such expenses authorized in writing in
advance by the Company, or its nominee. |
|
| 5. | There are excluded from the operation of paragraph 4: |
| (a) | all patents issued in my name, alone or with others, prior to the date of my
first employment by the Company; and inventions for which no equipment, supplies,
facility or trade secret information of the Company was used and which were developed
entirely on my own time, and: |
| (1) | do not relate directly to the business of the Company or to
the Company’s actual or demonstrably anticipated research or development |
||
| (2) | which do not result from any work performed by me for the
Company; and |
| (b) | the inventions that are listed in the Appendix of this Agreement. |
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| 6. | To the extent permitted by applicable state law, I agree that I shall not, during my
employment at DigitalGlobe and for a period of one (1) year after the termination of my
employment at DigitalGlobe, directly or indirectly: |
| (a) | recruit, solicit, attempt to persuade, or assist in the recruitment or
solicitation of, any employee of the Company who was an employee, officer or agent of
the Company during the three month period immediately preceding the date of
termination of my employment, for the purpose of employing him or her or obtaining his
or her services or otherwise causing him or her to leave his or her employment with
the Company; |
||
| (b) | solicit or divert to any competing business any customer or prospective
customer to which I had contact during the eighteen (18) months prior to leaving
DigitalGlobe unless previously approved by DigitalGlobe in writing; or |
||
| (c) | become employed by or perform professional services of the type I provided
while employed by DigitalGlobe, for any competitor of DigitalGlobe in its direct
business lines, including, but not limited to, satellite and aerial imagery
operations, product distribution, mapping and other value added services, by directly
or indirectly taking any of the following actions: |
| (1) | owning, managing, operating, joining, controlling or
providing services to any entity, regardless of entity form or location, that
engages in or is seeking to engage in the current or planned business
activities of the Company; |
||
| (2) | serving as an employee, agent, consultant, officer, or
director of any such entity; or |
||
| (3) | inducing or attempting to induce any customer, supplier, or
business relation of the Company to cease doing business with the Company, or
in any other way interfering with the relationship between any customer,
supplier or business relation and the Company. |
If, after termination of my employment with the Company, I violate the covenants contained in
this paragraph, then the duration of the covenant shall be extended from the date I resume
compliance with the covenant, reduced by the number of days following my termination that I was
not in violation of the covenant.
| 7. | If the period of time or the area specified in Paragraph 6 should be adjudged unreasonable in
any proceeding, then the period of time shall be reduced by such numbers of months or the area
reduced by the elimination of such portion thereof or both so that such restrictions may be
enforced in such area and for such time as are adjudged to be reasonable. |
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| 8. | I acknowledge that the restrictions contained in this Agreement, in view of the global nature
of the Company’s business, are reasonable and necessary in order to protect the legitimate
interests of DigitalGlobe, and that any violation thereof would result in irreparable injuries to
DigitalGlobe. In the event of any violation of any of these restrictions, I acknowledge that
DigitalGlobe shall be entitled to obtain from any court of competent jurisdiction preliminary and
permanent injunctive relief as well as damages and an equitable accounting of all earnings,
profits, and other benefits arising from such violation, which rights shall be cumulative and in
addition to any other rights or remedies to which DigitalGlobe may be entitled. |
|
| 9. | This Agreement constitutes the entire Agreement between the parties in connection with the
subject matter hereof, supersedes any and all prior agreements or understandings between the
parties, and may only be changed by agreement in writing between the parties. |
|
| 10. | This Agreement shall be governed by, and construed in accordance with, the law of the State of
Colorado without regard to its conflict of laws principles. |
|
| 11. | This Agreement will be binding upon and inure to the benefit of the Company, its successors
and assigns. This Agreement may be assigned in whole or in part by the Company to a successor to
all or substantially all of the business or assets of the Company or the sub-portion of the
business or assets of the Company that relate to employee’s duties; or to any subdivision or part
of the company; or to any entity which is a subsidiary or affiliate of the Company. I acknowledge
that my obligations under this Agreement are binding upon my heirs, assigns and legal
representatives. |
I HAVE READ AND I UNDERSTAND THIS AGREEMENT AND ACKNOWLEDGE RECEIPT OF A COPY THEREOF:
/s/ Xxxxxxx X. Xxxxxxx
|
9/30/2011 | |
[Employee]
|
(Date) (Witness) |
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APPENDIX
/s/ Xxxxxxx X. Xxxxxxx
|
Longmont, CO | |
[Employee]
|
[Location] |
List of unpatented inventions owned or controlled by me on the date of entering these services
including documents which disclose same. (A disclosure of the inventions themselves is not called
for; what is wanted is an identification of the source documents, such as patent applications, or
drawings, identified by number, title and/or date.) This information should appear on the back of
both copies of this Agreement.
Change Program Methodology
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