EX-10.21.1: EMPLOYMENT AGREEMENT

EX-10.21.1 30 y19769exv10w21w1.txt EX-10.21.1: EMPLOYMENT AGREEMENT EXHIBIT 10.21.1 EMPLOYMENT AGREEMENT The parties to this Employment Agreement (this "AGREEMENT") are John P. Brady (the "EXECUTIVE"), residing at 1009 Baibes Court, Edgewater, New Jersey 07020, and ORBCOMM Inc. (the "COMPANY"), a company organized under the laws of Delaware, with principal offices located at 2115 Linwood Avenue, Fort Lee, NJ 07024. The Company and the Executive are parties to an existing employment agreement, executed in August 2004 (the "Prior Agreement"), pursuant to which the Executive is serving as the Company's Chief Financial Officer (the "CFO"). The term of the Prior Agreement is currently set to expire on July 5, 2006. The Company and the Executive have had discussions about finding a successor to the Executive to become the CFO after the Executive leaves that position, and the Company has requested that the Executive assist the Company with its transition to its new CFO, should the Company identify and hire such an individual before the Executive's employment terminates in accordance with this Agreement. The Executive has agreed to the Company's request in exchange for certain commitments made by the Company pursuant to a Term Sheet Re: Continued Employment entered into between the Executive and the Company on or about April 13, 2006 (the "Term Sheet"). As such, the Company desires to provide for the Executive's continued employment by the Company, and the Executive desires to accept such employment, under the terms and conditions contained herein, and, in consideration of the above recitals, the mutual covenants contained herein, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto have agreed as follows: 1. EMPLOYMENT. The Company shall employ the Executive, and the Executive shall serve the Company, as the CFO, with duties and responsibilities compatible with that position, provided that the Company shall be permitted to change the Executive's title, duties, and responsibilities if and/or when the Company hires an individual to succeed the Executive as the CFO. At such time, the Executive will no longer be the CFO, and his primary duties and responsibilities will be to assist the Company with the transition to the new CFO and executing and delivering any required certifications, certificates, and other documents that the Company may be required to file or provide. At all times during his employment, 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 of May 5, 2006 and shall continue through December 31, 2006, 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. To the extent not sooner terminated pursuant to the provision of Section 4, upon the natural expiration of the Term (or any extended Term), the Executive's employment will be deemed terminated. 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 $225,000. 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. The Executive shall be eligible to receive a discretionary bonus (the "BONUS") in an amount, if any, determined by the Company in its sole discretion. In order to receive such a Bonus, if any, the Executive must be actively employed by the Company on the date on which such Bonus is scheduled to be paid to the Executive. Further, if the Company establishes a bonus plan or program in which the Company's executives are generally permitted to participate, then the Executive shall be entitled to participate in such plan or program. The terms and conditions of the Executive's participation in, and/or any award under, any such plan or program shall be in accordance with the controlling plan or program documents. (c) Employee Benefits. 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 executives of the Company. In addition, the Executive shall be entitled to participate in any profit sharing plan and/or pension plan generally provided for the executives of the Company or any of its subsidiaries. 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 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. (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 reasonable transportation, lodging, food, and other expenses incurred by him in connection with traveling on Company business, including for the Executive's reasonable travel and lodging expenses related to his periodic travels to the Company's Virginia offices. - 2 - (f) Withholdings. All payments made under this Section 3, or any other provision of this Agreement, shall be subject to any and all federal, state, and local taxes and other withholdings to the extent required by applicable law. 4. TERMINATION OF EMPLOYMENT. (a) Absence. If the Executive shall fail or be unable to perform his essential duties under this Agreement for any reason, including a physical or mental disability, with or without reasonable accommodation, for one hundred eighty (180) calendar days during any twelve (12) month period or for one hundred (120) consecutive calendar days, then the Company may, by notice to the Executive, terminate his employment under this Agreement as of the date of the notice. Any such termination shall be made only in accordance with applicable law. (b) Death. The Executive's employment under this Agreement shall terminate automatically upon his death. (c) Termination by the Company. The Company shall have the right, exercisable at any time, to terminate the employment of the Executive for "cause" (as defined below). The Company shall only have to right to terminate the employment of the Executive without "cause" on or after December 3, 2006, provided that the Company reserves the right to place the Executive on a paid leave of absence, without any duties, at any time. The Executive's employment shall not be deemed to have been terminated with "cause" unless he shall have received written notice from the Company 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 negligence in the performance of his duties, (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. (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 two (2) months of advance written notice of such decision. Upon the receipt of such notice from the Executive, the Company may in its sole discretion accelerate such two-month period in order to make such termination effective sooner, and/or may withdraw any and all duties from the Executive and exclude him from the Company's premises during the notice period. - 3 - (e) Severance. If, prior to the natural expiration of the Term, the Company shall terminate the Executive's employment without "cause" pursuant to Section 4(c) above, or if the Executive's employment is terminated due to the natural expiration of the Term and the Executive is no longer serving as the CFO at such time, then, upon the Executive's execution of the Release attached hereto as Exhibit A (the "Release") and the effectiveness of the Release (as defined therein), 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), Base Salary compensation provided for by Section 3(a) above for six (6) months, provided that such severance payments will cease upon the Executive becoming employed by another employer as a chief financial officer, or in a similar position with comparable Base Salary compensation, or upon the Executive becoming re-employed by the Company in any other position. 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, if the Executive terminates his employment pursuant to Section 4(d) above, or if the Executive's employment is terminated due to the natural expiration of the Term and the Executive is still serving as the CFO at such time, then the Executive shall not thereafter be entitled to any further payments under this Agreement, including Base Salary, Bonus, Employee Benefits, or Severance. The Severance referred to in this Section 4(e) shall be made payable by the Company to the Executive on the same payment schedule as if the Executive were still employed by the Company. 5. MERGER OR SALE OF ASSETS. If the Company shall merge or consolidate with another corporation or other entity, or shall transfer all or substantially all of its assets to another person, corporation, or other entity, 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 person, corporation, or entity continues the Executive's employment on substantially equivalent terms. 6. OBLIGATIONS OF THE EXECUTIVE. (a) Protectable Interests of the Company. The Executive acknowledges that he has and will continue to play an important role in establishing the goodwill of the Company and its related entities, including relationships with clients, employees, and suppliers. The Executive further acknowledges that over the course of his employment with the Company, he has and will continue to (i) develop special relationships with clients, employees, and/or suppliers, and/or (ii) be privy to Confidential Information (as defined below). As such, the Executive agrees to the restrictions below in order to protect such interests on behalf of the Company, which restrictions the parties hereto agree to be reasonable and necessary to protect such interests. (b) Non-Competition. During the Executive's employment and for the one (1) - 4 - 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 in any entity; and in each such case, that is in competition with the Business. For purposes of this Section 6(b) and Section 6(c) below, "Business" shall mean the business of offering data communication services via low-Earth orbit satellites, 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 6(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 six (6) months prior to the termination of the Executive's employment, for employment or engagement (whether as an employee, consultant, or otherwise) with a person or entity involved in marketing or selling products or services competitive with the Business. The Executive acknowledges and understands that, due to the global nature of the Company's business and the technological advancements in electronic communications around the world, any geographic restriction of the Executive's obligation under this Section 6(c) would be inappropriate and counter to the protections sought by the Company hereunder. (d) Confidential Information. The Executive acknowledges that during the course of his employment with the Company, he has had and will continue to have access to information about the Company, and its clients and suppliers, that is confidential and/or proprietary in nature, and which belongs to the Company. As such, at all times, both during 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 6(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 - 5 - Information. For purposes of this Agreement, "CONFIDENTIAL INFORMATION" means any confidential or proprietary information that 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 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 the 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 6 be enforced to the fullest extent permissible under the laws of each jurisdiction in which enforcement is sought. If any of the restrictions contained or referenced in this Section 6 is for any reason held by an arbitrator or court to be excessively broad as to duration, activity, geographical scope, or subject, - 6 - 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 applicable law. (h) Equitable Relief. The Executive acknowledges that the remedy at law for his breach of this Section 6 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 6, 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 6(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 6 which may be pursued or availed of by the Company. 7. ARBITRATION. Except as provided in Section 6(h) above, 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. Each party shall select an arbitrator by mutual agreement within thirty (30) days after the written notice of intention to arbitrate is received. If the parties fail to select an arbitrator by mutual agreement, the party seeking arbitration shall notify the AAA of the demand for arbitration and obtain a list of arbitrators from the AAA's Employment Dispute Resolution Roster. 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. 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 - 7 - 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. 8. MISCELLANEOUS. (a) Notices. Any notice or other communication under this Agreement shall be in writing and shall be considered given when delivered personally or five (5) days after mailed by registered mail, return receipt requested, to the Executive and the Company at their respective addresses set forth above (or at such other address as a party may specify by notice to the other). (b) Entire Agreement; Amendments. 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, including, without limitation, the Prior Agreement and the Term Sheet. This Agreement may not be amended except by a written agreement signed by the Company and the Executive. (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 without regard to its conflict of laws principles. IN WITNESS WHEREOF, the parties hereto have executed this document as of the 5th day of May, 2006. ORBCOMM Inc. JOHN P. BRADY By: /s/ Jerome B. Eisenberg /s/ John Brady Name: Jerome B. Eisenberg Title: CEO and President - 8 - EXHIBIT A -- GENERAL RELEASE FOR AND IN CONSIDERATION OF the employment agreement to which this General Release is attached and the severance payments contemplated therein, I, JOHN P. BRADY, agree, on behalf of myself and my heirs, executors, administrators, and assigns, to release and discharge ORBCOMM INC. (the "Company"), and its current and former officers, directors, employees, agents, owners, subsidiaries, divisions, affiliates, parents, successors, and assigns (the "Released Parties") from any and all manner of actions and causes of action, suits, debts, dues, accounts, bonds, covenants, contracts, agreements, judgments, charges, claims, and demands whatsoever ("Losses") that I and my heirs, executors, administrators, and assigns have, or may hereafter have, against the Released Parties or any of them arising out of or by reason of any cause, matter, or thing whatsoever from the beginning of the world to the date hereof, including without limitation, my employment agreement, 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 National Labor Relations Act of 1935, as amended, 29 U.S.C. Sections 151 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 Ann. Sections 2.1-714 et seq., the Virginia Persons with Disabilities Act, as amended, Va. Code Ann. Sections 51.5-1 et seq., the New Jersey Law Against Discrimination, as amended, N.J. Stat. Ann. 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 that arise after the date on which I execute this General Release. It is understood that nothing in this General Release is to be construed as an admission on behalf of the Released Parties of any wrongdoing with respect to me, any such wrongdoing being expressly denied. I 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, to the maximum extent permitted by law, not to initiate or cause to be initiated on my behalf, any complaint, charge, claim, or proceeding against the Released Parties before any federal, state, or local agency, court, or other body relating to my employment agreement, my employment, or the cessation thereof, and agree not to voluntarily participate in such a proceeding. However, nothing in this General Release shall preclude or prevent me from filing a claim with the Equal Employment Opportunity Commission that - 9 - challenges the validity of this General Release solely with respect to my waiver of any Losses arising under the ADEA. I acknowledge that I have twenty-one (21) days in which to consider whether to execute this General Release. I understand that I may waive such 21-day consideration period. I understand that upon my execution of this General Release, I will have seven (7) days after such execution in which I may revoke my execution of this General Release. In the event of revocation, I must present written notice of such revocation to __________________ 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. JOHN P. BRADY DATE STATE OF ) : ss.: COUNTY OF ) On the ___ day of ___________________ in the year 200__, before me, the undersigned, personally appeared JOHN P. BRADY, 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 - 10 -