Transition Agreement between the Registrant and S. Scott Smith, dated as of March 15, 2019
EX-10.4 5 irdm10-q033119exx104.htm EXHIBIT 10.4 Exhibit
March 15, 2019
Stanford S. Smith
32341 Little Bear Court
Evergreen, CO 80439
Re: Transition Agreement
This letter sets forth the substance of the agreement (the “Agreement”) which Iridium Communications Inc., Iridium Satellite LLC and any of their subsidiaries (collectively the “Company”) are offering to you in connection with your transition to consulting status.
1.Resignation from Employment. You have voluntarily resigned from the Company, effective March 15, 2019 (the “Separation Date”) in accordance with Section 9(c) of the Employment Agreement between you and the Company, dated March 2010, as amended, attached hereto as Exhibit A (the “Employment Agreement”).
2. Accrued Salary and Vacation. On the Separation Date, the Company will pay you all accrued salary and accrued vacation time. You will receive these payments regardless of whether or not you sign this Agreement.
3. Benefit Plans. Your participation in Company sponsored benefit plans will cease as of March 31, 2019. You acknowledge and agree that the Company has no further obligations to you with respect to payment of post-termination health insurance coverage, and should you become eligible for COBRA coverage under the Company’s group health plans, the Company has no obligation to pay for the cost of such COBRA coverage on your behalf.
4. Separation. You agree that you voluntarily resigned from employment with the Company and that you are not eligible for any separation benefits under the Employment Agreement or any other Company policy. Although the Company is not otherwise obligated to do so, if you (a) execute this Agreement on the Separation Date, but not earlier, return the executed Agreement to the Company on the Separation Date, do not revoke it and otherwise comply with the terms of this Agreement, and (b) execute the Consulting Agreement attached to this Agreement as Exhibit B (the “Consulting Agreement”) on or before the Separation Date, then the Company will execute the Consulting Agreement, subject to Section 5 below and, pursuant to Section 6 below, your Current Awards (as defined below) will remain outstanding in accordance with their terms and be eligible to continue to vest (except as expressly set forth therein).
5. Consultancy. Provided the Company has received the executed Consulting Agreement from you on or before the Separation Date, beginning on the Separation Date, you will
provide consulting services to the Company at an anticipated rate of up to twenty (20) hours per month while the Consulting Agreement remains in effect, subject to the terms of the Consulting Agreement. If you execute this Agreement and then revoke it your consultancy with the Company will end on the date you revoke this Agreement. If you timely execute and do not revoke this Agreement, then the terms of your consultancy will be as set forth in the Consulting Agreement.
6. Equity Awards. Your currently outstanding stock option awards and restricted stock units awards (the “Current Awards”) are set forth on Exhibit C to this Agreement. Under the terms of the Company’s equity compensation plans and the applicable award agreements governing the Current Awards, because you have transitioned to providing services to the Company as a consultant, so long as you continue your consultancy with the Company per Section 5 above and the terms of the Consulting Agreement, you will not be deemed to have a break in service and your Current Awards will remain outstanding in accordance with the terms of the equity incentive plans and award agreements governing the Current Awards and will continue to be eligible to vest (except as expressly set forth therein). For the avoidance of doubt, the Current Awards will cease vesting pursuant to the Consulting Agreement and be solely subject to the terms of the Company’s equity incentive plans and award agreements governing the Current Awards upon the termination of the Consulting Agreement and your service as a consultant for any reason. In addition, notwithstanding anything to the contrary set forth in the Company’s Performance Share Program (the “PSP”) or the equity incentive plans and award agreements governing the Current Awards granted as performance-based restricted stock unit awards pursuant to the PSP (the “PSP Current Awards”), the PSP Current Awards will remain outstanding and will continue to be eligible to vest during your service as a consultant under the Consulting Agreement, subject to the terms of the PSP (as modified by this Section 6). The Current Awards remain subject to the terms of the equity incentive plans and awards agreements governing the Current Awards, as modified by this Section 6, including the Company’s right to terminate the Current Awards upon certain transactions involving the Company.
7. Other Compensation or Benefits. You acknowledge that, except as expressly provided in this Agreement and the Consulting Agreement, you are not eligible for, and will not receive, any additional compensation, severance or benefits after the Separation Date with the exception of any vested right you may have under the terms of a written ERISA-qualified benefit plan (e.g., 401(k) account) and any rights you have under any existing equity awards. By way of example, but not limitation, you acknowledge that you have not earned and are not owed any bonus or incentive compensation from the Company.
8. Expense Reimbursements. You agree that, within ten (10) days of the Separation Date, you will submit your final documented expense reimbursement statement reflecting all business expenses you incurred as an employee through the Separation Date, if any, for which you seek reimbursement. The Company will reimburse you for reasonable business expenses pursuant to its regular business practice.
9. Return of Company Property. If requested by the Company, you agree to return to the Company all Company documents (and all copies thereof) and other Company property that are specifically requested by the Company and that you have had in your possession at any time, including, but not limited to, Company files, notes, drawings, records, business plans and forecasts, financial information, specifications, computer-recorded information, tangible property including,
but not limited to, computers, cell phone, entry cards, identification badges and keys; and, any materials of any kind that contain or embody any proprietary or confidential information of the Company (and all reproductions thereof). If requested by the Company, you agree that you will make a diligent search to locate any such documents, property and information. In addition, if requested by the Company, if you have used any personal computer, server, or e-mail system to receive, store, review, prepare or transmit any Company confidential or proprietary data, materials or information, you agree to provide the Company with a computer-useable copy of such information and then permanently delete and expunge such Company confidential or proprietary information from those systems and you agree to provide the Company access to your system as requested to verify that the necessary copying and/or deletion is done.
10. Proprietary Information and Post-Termination Obligations. Both during and after your employment you acknowledge your continuing obligations under that certain PROPRIETARY INFORMATION, INVENTIONS AND NON-SOLICITATION AGREEMENT you previously signed, including without limitation the provisions which address your continuing obligations to the Company relating to confidentiality and non-solicitation. Such PROPRIETARY INFORMATION, INVENTIONS AND NON-SOLICITATION AGREEMENT is not waived and is incorporated herein by reference. A copy of the PROPRIETARY INFORMATION, INVENTIONS AND NON-SOLICITATION AGREEMENT is attached as Exhibit D. In addition, you acknowledge your continuing obligations under Section 10 of your Employment Agreement related to non-competition and other restrictive covenants. Confidential information that is also a “trade secret,” as defined by law, may be disclosed (A) if it is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, in the event that you file a lawsuit for retaliation by the Company for reporting a suspected violation of law, you may disclose the trade secret to your attorney and use the trade secret information in the court proceeding, if you: (A) file any document containing the trade secret under seal; and (B) do not disclose the trade secret, except pursuant to court order.
11. Confidentiality. The provisions of this Agreement will be held in strictest confidence by you and will not be publicized or disclosed in any manner whatsoever; provided, however, that: (a) you may disclose this Agreement to your immediate family; (b) you may disclose this Agreement in confidence to your attorney, accountant, auditor, tax preparer, and financial advisor; and (c) you may disclose this Agreement insofar as such disclosure may be required by law. Notwithstanding the foregoing, nothing in this Agreement (including but not limited to this Section 11 and Section 12) shall limit your right to voluntarily communicate with the Equal Employment Opportunity Commission, United States Department of Labor, the National Labor Relations Board, the Securities and Exchange Commission, other federal government agency or similar state or local agency or to discuss the terms and conditions of your employment with others to the extent expressly permitted by Section 7 of the National Labor Relations Act.
12. Non-Disparagement. You hereby agree not to defame or disparage the Company or any executive, manager, director, or officer of the Company in any medium to any person without limitation in time. Notwithstanding this provision, you may confer in confidence with your legal
representatives and respond accurately and fully to any question, inquiry or request for information when required by legal process.
13. Cooperation After Termination. During the time that you are providing consulting services to the Company, you agree to cooperate fully with the Company in all matters relating to the transition of your work and responsibilities on behalf of the Company, including, but not limited to, any present, prior or subsequent relationships and the orderly transfer of any such work and institutional knowledge to such other persons as may be designated by the Company.
14. Release. In exchange for the consideration under this Agreement, to which you would not otherwise be entitled, and except as otherwise set forth in this Agreement, you, for and on behalf of yourself and your heirs, successors, agents, representatives, executors and assigns, hereby waive and release any common law, statutory or other complaints, claims, demands, expenses, damages, liabilities, charges or causes of action (each, a “Claim”) arising out of or relating to your employment or termination of employment with, your serving in any capacity in respect of; related to salary, bonuses, commissions, stock, stock options, or any other ownership interests in the Company, vacation pay, fringe benefits, expense reimbursements, severance pay, or any other form of compensation; pursuant to any federal, state or local law, statute, or cause of action; tort law; or contract law; or related to your status at any time as a holder of any securities of, any of the Company and any of its affiliates (collectively, the “Company Group”), in all cases, both known and unknown, suspected and unsuspected, disclosed or undisclosed, in law or in equity, which you may now have or ever had against any member of the Company Group or any equityholder, agent, representative, administrator, trustee, attorney, advisor, insurer, fiduciary, employee, director or officer of any member of the Company Group, including their successors and assigns (collectively, the “Company Releasees”), including, without limitation, any claim for any severance benefit which might have been due to you under any previous agreement executed by and between any member of the Company Group and you; any complaint, charge or cause of action that any member of the Company Group has discriminated against you on the basis of age, race, color, sex (including sexual harassment), national origin, ancestry, disability, religion, sexual orientation, marital status, parental status, source of income, entitlement to benefits, any union activities or other protected category in violation of any local, state or federal law, constitution, ordinance, or regulation, including but not limited to: Age Discrimination in Employment Act of 1967 (“ADEA,” a law which prohibits discrimination on the basis of age against individuals who are age 40 or older), the National Labor Relations Act, the Civil Rights Act of 1991, the Americans with Disabilities Act of 1990, Title VII of the Civil Rights Act of 1964, the Employee Retirement Income Security Act of 1974, the Family Medical Leave Act, the Equal Pay Act, the Securities Act of 1933, the Securities Exchange Act of 1934, the Rehabilitation Act of 1973, the Worker Adjustment and Retraining Notification Act, the Virginia Human Rights Act, the Arizona Civil Rights Act, the Arizona Wage Act; the Arizona Employment Protection Act, the Arizona Equal Pay Act, and the Arizona Constructive Discharge Statute (A.R.S. §23-1502), all as amended, and all other federal, state and local statutes, ordinances and regulations; and complaint, charge or cause of action that any member of the Company Group has violated any statute, public policy or common law (including but not limited to Claims for retaliatory discharge; negligent hiring, retention or supervision; defamation; intentional or negligent infliction of emotional distress and/or mental anguish; intentional interference with contract; negligence; detrimental reliance; loss of consortium to you or any member of your family and/or promissory estoppel). By signing this Agreement, you acknowledge that you intend to waive and release any
rights known or unknown that you may have against the Company Releasees under these and any other laws; provided that, you do not waive or release Claims (i) with respect to the right to enforce this Agreement or those provisions of the Employment Agreement that expressly survive the termination of your employment with the Company, (ii) with respect to any vested right you may have under any employee pension or welfare benefit plan of the Company Group, or (iii) any rights to indemnification preserved by Section 8 of the Employment Agreement or under any applicable indemnification agreement, any D&O insurance policy applicable to you and/or the Company’s certificates of incorporation, charter and by-laws, (iv) that may arise after the execution date of this Agreement; or (v) with respect to any claims that cannot legally be waived. Nothing in this Agreement shall prevent you from filing, cooperating with, or participating in any proceeding or investigation before the Equal Employment Opportunity Commission, United States Department of Labor, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal government agency, or similar state or local agency (“Government Agencies”), or exercising any rights pursuant to Section 7 of the National Labor Relations Act. You further understand this Agreement does not limit your ability to voluntarily communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company. While this Agreement does not limit your right to receive an award for information provided to the Securities and Exchange Commission, you understand and agree that, you are otherwise waiving, to the fullest extent permitted by law, any and all rights you may have to individual relief based on any Claims that you have released and any rights you have waived by signing this Agreement. If any Claim is not subject to release, to the extent permitted by law, you waive any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective or multi-party action or proceeding based on such a Claim in which any of the Company Parties is a party. This Agreement does not abrogate your existing rights under any Company benefit plan or any plan or agreement related to equity ownership in the Company; however, it does waive, release and forever discharge Claims existing as of the date you execute this Agreement pursuant to any such plan or agreement.
You have been told that your waiver and release do not apply to any rights or Claims that may arise after the execution date of this Agreement. You acknowledge that you have been given at least twenty-one (21) days from the date of receipt of this Agreement to consider all of the provisions of the Agreement. You shall have seven (7) days from the date of your execution of this Agreement to revoke this Agreement, including with respect to all claims referred to herein (including, without limitation, any and all claims arising under ADEA). If you revoke the Agreement, you will be deemed not to have accepted the terms of this Agreement. This Agreement shall not be effective until the date upon which the revocation period has expired unexercised (the “Effective Date”), which shall be the eighth day after this Agreement is executed by you.
YOU FURTHER ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT CAREFULLY, HAVE BEEN ADVISED BY THE COMPANY TO CONSULT AN ATTORNEY, AND FULLY UNDERSTAND THAT BY SIGNING BELOW YOU ARE GIVING UP CERTAIN RIGHTS WHICH YOU MAY HAVE TO SUE OR ASSERT A CLAIM AGAINST ANY OF THE COMPANY RELEASEES, AS DESCRIBED HEREIN AND THE OTHER PROVISIONS HEREOF AND ARE KNOWINGLY AND VOLUNTARILY WAIVING AND RELEASING ALL
RIGHTS YOU MAY HAVE UNDER THE ADEA. YOU ACKNOWLEDGE THAT YOU HAVE NOT BEEN FORCED OR PRESSURED IN ANY MANNER WHATSOEVER TO SIGN THIS AGREEMENT AND YOU AGREE TO ALL OF ITS TERMS VOLUNTARILY.
15. Your Acknowledgments and Affirmations/Effective Date of Agreement. You also acknowledge and agree that (i) the consideration given to you in exchange for the waiver and release in this Agreement is in addition to anything of value to which you were already entitled, and (ii) that you have been paid for all time worked, have received all the leave, leaves of absence and leave benefits and protections for which you are eligible, and have not suffered any on-the-job injury for which you have not already filed a Claim. You affirm that all of the decisions of the Company Group regarding your pay and benefits through the date of your execution of this Agreement were not discriminatory based on age, disability, race, color, sex, religion, national origin or any other classification protected by law. You affirm that you have not filed or caused to be filed, and are not presently a party to, a Claim against any member of the Company Group. You further affirm that you have no known workplace injuries or occupational diseases. You acknowledge and affirm that you have not been retaliated against for reporting any allegation of corporate fraud or other wrongdoing by any member of the Company Group, or for exercising any rights protected by law, including any rights protected by the Fair Labor Standards Act, the Family Medical Leave Act or any related statute or local leave or disability accommodation laws, or any applicable state workers’ compensation law.
16. No Admission. This Agreement does not constitute an admission by the Company of any wrongful action or violation of any federal, state, or local statute, or common law rights, including those relating to the provisions of any law or statute concerning employment actions, or of any other possible or claimed violation of law or rights.
17. Breach. You acknowledge that it may be impossible to assess the damages caused by your violation of the terms of paragraphs 9, 10, 11 and 12 of this Agreement and further agree that any threatened or actual violation or breach of those paragraphs of this Agreement will constitute immediate and irreparable injury to the Company. You therefore agree that any such breach of this Agreement is a material breach of this Agreement, and, in addition to any and all other damages and remedies available to the Company upon your breach of this Agreement, the Company shall be entitled to an injunction to prevent you from violating or breaching this Agreement. You agree that if the Company is successful in whole or part in any legal or equitable action against you under this Agreement, you agree to pay all of the costs, including reasonable attorney’s fees, incurred by the Company in enforcing the terms of this Agreement.
18. Miscellaneous. This Agreement, including the Exhibits hereto, constitutes the complete, final and exclusive embodiment of the entire agreement between you and the Company with regard to this subject matter. It is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein, and it supersedes any other such promises, warranties or representations. This Agreement may not be modified or amended except in a writing signed by both you and a duly authorized officer of the Company. This Agreement will bind the heirs, personal representatives, successors and assigns of both you and the Company, and inure to the benefit of both you and the Company, their heirs, successors and assigns. If any provision of this Agreement is determined to be invalid or unenforceable, in whole or in part, this determination
will not affect any other provision of this Agreement and the provision in question will be modified by the court so as to be rendered enforceable. This Agreement will be deemed to have been entered into and will be construed and enforced in accordance with the laws of the Commonwealth of Virginia as applied to contracts made and to be performed entirely within Virginia.
If this Agreement is acceptable to you, please sign below and return the original to me. If this Agreement is not executed on the Separation Date, this offer will automatically expire. You acknowledge that you are not permitted to sign prior to the Separation Date.
Iridium Satellite LLC
Matthew J. Desch, CEO
Exhibit A – Employment Agreement
Exhibit B – Consulting Agreement
Exhibit C – Current Awards
Exhibit D – Proprietary Information, Inventions and Non-Solicitation Agreement
Exhibit D – Employment Agreement
AGREED TO AND ACCEPTED:
S. Scott Smith
THIS CONSULTING AGREEMENT (the “Agreement”) by and between Iridium Satellite LLC, and Iridium Communications Inc. and its other subsidiaries (“Client”) and S. Scott Smith, an individual (“Consultant”) is effective as of March 15, 2019, (the “Effective Date”).
WHEREAS the parties desire for the Client to engage Consultant to perform the services described herein and for Consultant to provide such services on the terms and conditions described herein; and
WHEREAS, the parties desire to use Consultant’s independent skill and expertise pursuant to this Agreement as an independent contractor;
NOW THEREFORE, in consideration of the promises and mutual agreements contained herein, the parties hereto, intending to be legally bound, agree as follows:
1.Engagement of Services. Consultant agrees to provide consulting services to include, among other things: participating in Client meetings as requested by the Chief Executive Officer of the Client (the “CEO” or the “Executive”) and other services upon request of the CEO. Consultant agrees to exercise the highest degree of professionalism and utilize his expertise and creative talents in performing these services. Consultant agrees to make himself available to perform such consulting services throughout the Consulting Period, which shall include a maximum twenty (20) hours per month throughout the Consulting Period, and to be reasonably available to meet with the Client at its offices or otherwise.
2. Compensation. In consideration for the services rendered pursuant to this Agreement and for the assignment of certain of Consultant’s right, title and interest pursuant hereto, Consultant’s restricted stock units awards (the “Current Awards”) set forth on Annex A to this Agreement will remain outstanding and continue to be eligible vest in accordance with the terms of such Current Awards (except as expressly set forth therein and as modified by this Section 2 to the extent necessary) and currently outstanding options will remain exercisable in accordance with their terms while Consultant continues to provide such services to the Company under this Agreement. For the avoidance of doubt, the Current Awards will cease vesting pursuant to this Agreement and be solely subject to the terms of the Company’s equity compensation plans and award agreements upon the termination of this Agreement.
3. Ownership of Work Product. Consultant hereby irrevocably assigns, grants and conveys to Client all right, title and interest now existing or that may exist in the future in and to any document, development, work product, know-how, design, processes, invention, technique, trade secret, or idea, and all intellectual property rights related thereto, that is created by Consultant, to which Consultant contributes, or which relates to Consultant’s services provided pursuant to this
Agreement (the “Work Product”), including all copyrights, trademarks and other intellectual property rights (including but not limited to patent rights) relating thereto. Consultant agrees that any and all Work Product shall be and remain the property of Client. Consultant will immediately disclose to the Client all Work Product. Consultant agrees to execute, at Client’s request and expense, all documents and other instruments necessary or desirable to confirm such assignment. In the event that Consultant does not, for any reason, execute such documents within a reasonable time of Client’s request, Consultant hereby irrevocably appoints Client as Consultant’s attorney-in-fact for the purpose of executing such documents on Consultant’s behalf, which appointment is coupled with an interest. Consultant shall not attempt to register any works created by Consultant pursuant to this Agreement at the U.S. Copyright Office, the U.S. Patent & Trademark Office, or any foreign copyright, patent, or trademark registry. Consultant retains no rights in the Work Product and agrees not to challenge Client’s ownership of the rights embodied in the Work Product. Consultant further agrees to assist Client in every proper way to enforce Client’s rights relating to the Work Product in any and all countries, including, but not limited to, executing, verifying and delivering such documents and performing such other acts (including appearing as a witness) as Client may reasonably request for use in obtaining, perfecting, evidencing, sustaining and enforcing Client’s rights relating to the Work Product. Notwithstanding the foregoing, nothing in this Agreement shall serve to alter the ownership of any intellectual property rights of Client.
4. Artist’s, Moral, and Other Rights. If Consultant has any rights, including without limitation “artist’s rights” or “moral rights,” in the Work Product which cannot be assigned (the “Non-Assignable Rights”), Consultant agrees to waive enforcement worldwide of such rights against Client. In the event that Consultant has any such rights that cannot be assigned or waived Consultant hereby grants to Client a royalty-free, paid-up, exclusive, worldwide, irrevocable, perpetual license under the Non-Assignable Rights to (i) use, make, sell, offer to sell, have made, and further sublicense the Work Product, and (ii) reproduce, distribute, create derivative works of, publicly perform and publicly display the Work Product in any medium or format, whether now known or later developed.
5. Representations and Warranties. Consultant represents and warrants that: (a) Consultant has the full right and authority to enter into this Agreement and perform his obligations hereunder; (b) Consultant has the right and unrestricted ability to assign the Work Product to Client as set forth in Sections 3 and 4 (including without limitation the right to assign any Work Product created by Consultant’s employees or contractors); (c) the Work Product has not heretofore been published in its entirety; and (d) the Work Product will not infringe upon any copyright, patent, trademark, right of publicity or privacy, or any other proprietary right of any person, whether contractual, statutory or common law. Consultant agrees to indemnify Client from any and all damages, costs, claims, expenses or other liability (including reasonable attorneys’ fees) arising from or relating to the breach or alleged breach by Consultant of the representations and warranties set forth in this Section 5.
6. Independent Contractor Relationship. Consultant is an independent contractor and not an employee of the Client. Nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. The manner and means by which Consultant chooses to complete the consulting services are in Consultant’s sole discretion and control. In completing the consulting services, Consultant agrees to provide his own equipment,
tools and other materials at his own expense. Consultant is not authorized to represent that he is an agent, employee, or legal representative of the Client. Consultant is not authorized to make any representation, contract, or commitment on behalf of Client or incur any liabilities or obligations of any kind in the name of or on behalf of the Client. Consultant shall be free at all times to arrange the time and manner of performance of the consulting services. Consultant is not required to maintain any schedule of duties or assignments. Consultant is also not required to provide reports to the Client. In addition to all other obligations contained herein, Consultant agrees: (a) to proceed with diligence and promptness and hereby warrants that such services shall be performed in accordance with the highest professional standards in the field to the satisfaction of the Client; and (b) to comply, at Consultant’s own expense, with the provisions of all state, local, and federal laws, regulations, ordinances, requirements and codes which are applicable to the performance of the services hereunder.
7. Consultant’s Responsibilities. As an independent contractor, the mode, manner, method and means used by Consultant in the performance of services shall be of Consultant’s selection and under the sole control and direction of Consultant. Consultant shall be responsible for all risks incurred in the operation of Consultant’s business and shall enjoy all the benefits thereof. Any persons employed by or subcontracting with Consultant to perform any part of Consultant’s obligations hereunder shall be under the sole control and direction of Consultant and Consultant shall be solely responsible for all liabilities and expenses thereof. The Client shall have no right or authority with respect to the selection, control, direction, or compensation of such persons.
8. Tax Treatment. Consultant agrees, as an independent contractor, he is not entitled to unemployment benefits in the event this Agreement terminates, or workers’ compensation benefits in the event that Consultant is injured in any manner while performing obligations under this Agreement. Consultant will be responsible to pay any and all required local, state, and/or federal income, social security and unemployment taxes. Client will prepare and provide Consultant with any tax forms required by law and to the extent applicable withhold and remit any taxes required by Client. Consultant is solely responsible for, and will timely file all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services under this Agreement. Consultant is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing services under this Agreement, except as provided herein.
9. No Employee Benefits. Consultant acknowledges and agrees that neither he nor anyone acting on his behalf shall receive any employee benefits of any kind from the Client. Consultant (and Consultant’s agents, employees, and subcontractors) is excluded from participating in any fringe benefit plans or programs, as a result of the performance of services under this Agreement, without regard to Consultant’s independent contractor status. In addition, Consultant (on behalf of himself and on behalf of Consultant’s agents, employees, and contractors) waives any and all rights, if any, to participation in any of the Client’s fringe benefit plans or programs including, but not limited to, health, sickness, accident or dental coverage, life insurance, disability benefits, severance, accidental death and dismemberment coverage, unemployment insurance coverage, workers’ compensation coverage, and pension or 401(k) benefit(s) provided by the Client to its employees as a result of performance of services under this Agreement.
10. Expenses and Liabilities. Consultant agrees that as an independent contractor, he is solely responsible for all expenses (and profits/losses) he incurs in connection with the performance of services. Consultant understands that he will not be reimbursed for any supplies, equipment, or operating costs, nor will these costs of doing business be defrayed in any way by the Client. In addition, the Client does not guarantee to Consultant that fees derived from Consultant’s business will exceed Consultant’s costs.
11. Non-Exclusivity. The Client reserves the right to engage other consultants to perform services, without giving Consultant a right of first refusal or any other exclusive rights. Consultant reserves the right to perform services for other persons, provided that the performance of such services do not conflict or interfere with services provided pursuant to or obligations under this Agreement.
12. No Conflict of Interest. During the term of this Agreement, unless written permission is given by the Executive, Consultant will not accept work, enter into a contract, or provide services to any third party that provides products or services which compete with the products or services provided by the Client nor may Consultant enter into any agreement or perform any services which would conflict or interfere with the services provided pursuant to or the obligations under this Agreement. Nothing herein is intended to amend, reduce, eliminate or modify the obligations that Consultant owes to the Company as set forth in Section 10 of the Transition Agreement between Client and the Company dated March 15, 2019 and the exhibits thereto (together the “Transition Agreement”). Consultant warrants that there is no other contract or duty on his part that prevents or impedes Consultant’s performance under this Agreement. Consultant agrees to indemnify Client from any and all loss or liability incurred by reason of the alleged breach by Consultant of any services agreement with any third party.
13. Confidential Information. Consultant agrees to hold Client’s Confidential Information (as defined below) in strict confidence and not to disclose such Confidential Information to any third parties. Consultant also agrees not to use any of Client’s Confidential Information for any purpose other than performance of Consultant’s services hereunder. “Confidential Information” as used in this Agreement shall mean all information disclosed by Client to Consultant, or otherwise, regarding Client or its business obtained by Consultant pursuant to services provided under this Agreement that is not generally known in the Client’s trade or industry and shall include, without limitation, (a) concepts and ideas relating to the development and distribution of content in any medium or to the current, future and proposed products or services of Client or its subsidiaries or affiliates; (b) trade secrets, drawings, inventions, know-how, software programs, and software source documents; (c) information regarding plans for research, development, new service offerings or products, marketing and selling, business plans, business forecasts, budgets and unpublished financial statements, licenses and distribution arrangements, prices and costs, suppliers and customers; and (d) any information regarding the skills and compensation of employees, contractors or other agents of the Client or its subsidiaries or affiliates. Confidential Information also includes proprietary or confidential information of any third party who may disclose such information to Client or Consultant in the course of Client’s business. Consultant’s obligations set forth in this Section shall not apply with respect to any portion of the Confidential Information that Consultant can document by competent proof that such portion: (i) is in the public domain through no fault of Consultant; (ii) has been rightfully independently communicated to Consultant free of any obligation
of confidence; or (iii) was developed by Consultant independently of and without reference to any information communicated to Consultant by Client. In addition, Consultant may disclose Client’s Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law. All Confidential Information furnished to Consultant by Client is the sole and exclusive property of Client or its suppliers or customers. Upon request by Client, Consultant agrees to promptly deliver to Client the original and any copies of such Confidential Information. Consultant’s duty of confidentiality under this Agreement does not amend or abrogate in any manner Consultant’s continuing duties under any prior agreement between Consultant and Client. Notwithstanding the foregoing or anything to the contrary in this Agreement or any other agreement between Client and Consultant, nothing in this Agreement shall limit Consultant’s right to discuss Consultant’s engagement with the Client or report possible violations of law or regulation with the Equal Employment Opportunity Commission, United States Department of Labor, the National Labor Relations Board, the Securities and Exchange Commission, or other federal government agency or similar state or local agency or to discuss the terms and conditions of Consultant’s engagement with others to the extent expressly permitted by applicable provisions of law or regulation, including but not limited to "whistleblower" statutes or other similar provisions that protect such disclosure. Further, notwithstanding the foregoing, pursuant to 18 U.S.C. Section 1833(b), Consultant shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (1) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (2) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal
14. Term and Termination.
14.1 Term. Unless previously terminated as set forth in Section 14.2 below, the term of this Agreement and the “Consulting Period” shall commence on the Effective Date and shall terminate one (1) year thereafter.
(a) Automatic Termination. If Consultant fails to execute the Transition Agreement in accordance with the timing requirements stated in the Transition Agreement, then this Agreement will automatically terminate effective March 16, 2019. If Consultant revokes his acceptance of the Transition Agreement within seven (7) days after executing the Transition Agreement, then this Agreement will automatically terminate on the day of such revocation.
(b) Termination Upon Notice. Either party may terminate this Agreement for any reason, or no reason, upon thirty (30) days’ advance written notice.
(c) Termination Upon Breach. The Client may terminate this Agreement before its expiration immediately if the Consultant materially breaches the Agreement. The parties agree that a “Material Breach” by Consultant shall occur if he: (i) fails to abide by any recognized professional standard, including any ethical standard; (ii) fails to provide services as reasonably requested by the Executive, which is not cured within
ten (10) business days; (iii) secures other full-time employment that prohibits his ability to provide services to the Client; (iv) breaches any other material obligations of this Agreement, or (v) violates local, state, or federal laws.
14.3 Effect of Termination. Upon any termination or expiration of this Agreement, Consultant (i) shall immediately discontinue all use of Client’s Confidential Information delivered under this Agreement; (ii) shall delete any such Client Confidential Information from Consultant’s computer storage or any other media, including, but not limited to, online and off-line libraries; and (iii) shall return to Client, or, at Client’s option, destroy, all copies of such Confidential Information then in Consultant’s possession. In the event the Client terminates this Agreement, or if Consultant terminates this Agreement, Consultant will not receive any additional consulting fees or other compensation as of the date of termination.
14.4 Survival. The rights and obligations contained in Sections 3-6, 8-9, 13, 14.3, 14.4, and 15-22 will survive any termination or expiration of this Agreement.
15. Insurance. Neither party shall be obligated to provide insurance to the other.
16. Successors and Assigns. Consultant may not subcontract or otherwise delegate his obligations under this Agreement without Client’s prior written consent. Client may assign this Agreement. Subject to the foregoing, this Agreement will be for the benefit of Client’s successors and assigns, and will be binding on Consultant’s subcontractors or delegatees.
17. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by overnight courier upon written verification of receipt; or (ii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission. Notice shall be sent to the addresses set forth below or such other address as either party may specify in writing.
18. Governing Law. This Agreement shall be governed in all respects by the laws of the Commonwealth of Virginia, as such laws are applied to agreements entered into and to be performed entirely within Virginia between Virginia residents. Any suit involving this Agreement shall be brought in a court sitting in Virginia. The parties agree that venue shall be proper in such courts, and that such courts will have personal jurisdiction over them.
19. Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
20. Waiver. The waiver by Client of a breach of any provision of this Agreement by Consultant shall not operate or be construed as a waiver of any other or subsequent breach by Consultant.
21. Injunctive Relief for Breach. Consultant’s obligations under this Agreement are of a unique character that gives them particular value; breach of any of such obligations will result in irreparable and continuing damage to Client for which there will be no adequate remedy at law;
and, in the event of such breach, Client will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate and attorney’s fees).
22. Entire Agreement. This Agreement constitutes the entire understanding of the parties relating to the subject matter and supersedes any previous oral or written communications, representations, understanding, or agreement between the parties concerning such subject matter; provided however that this Agreement does not supersede any agreements between the parties in effect during the Consultant’s employment with the Company prior to entering into this Agreement that have ongoing application and effect. This Agreement shall not be changed, modified, supplemented or amended except by express written agreement signed by Consultant and the Client.
[Signature page follows]
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date first written above.
IRIDIUM SATELLITE LLC
IRIDIUM COMMUNICATIONS INC. S. SCOTT SMITH
Name (print): Name (print):
Proprietary Information, Inventions and Non-Solicitation Agreement