CONSIDERATIONPERIOD

This letter sets forth the substance of the agreement (the “Agreement”) between you and ICO Global Communications (Holdings) Limited (“ICO Global,” and together with its affiliates, the “Company”) in light of the decision of you and the Company to separate.

 

1. Separation.  Your last day of work with the Company and your employment termination date will be June 30, 2009 (the “Separation Date”). The Letter Agreement between you and the Company dated April 23, 2006, as amended on December 30, 2008, will be terminated on the Separation Date in all respects.  The payments and other benefits under this Agreement and the Consulting Agreement are in lieu of any payments and other benefits to which you would be eligible for under the Letter Agreement or any other arrangement between you and the Company.

 

2. Accrued Salary and Vacation.  On the Separation Date, the Company will pay you all accrued salary and all accrued and unused vacation earned through the Separation Date, subject to standard payroll deductions and withholdings.  You are entitled to these payments by law.

 

3. Consulting Agreement. If you execute and deliver to the Company this Agreement and do not revoke it, and execute and deliver to the Company the Consulting Agreement attached hereto as Exhibit A (“Consulting Agreement”), and resign as an officer of the Company and ICO North America, Inc., then following the “Effective Date” (as defined below) the Company will execute the Consulting Agreement pursuant to which you will be eligible to provide consulting services following the Separation Date.

 

4. Benefit Plans.  If you are currently participating in the Company’s group health insurance plans, to the extent provided by the federal COBRA law or, if applicable, state insurance laws, and by the Company’s current group health insurance policies, you will be eligible to continue your group health insurance benefits at your own expense.  Later, you may be able to convert to an individual policy through the provider of the Company’s health insurance, if you wish.  The Company contribution to your 401(k) Plan and any contributions by you will end with your paycheck for the June 30, 2009 pay period.  You will receive information by mail concerning 401(k) plan rollover procedures.  All participation in any other Company plans will also cease as of the Separation Date.

5. Stock Awards.  Vesting of awards granted to you under the Company’s stock plan for your service as an employee (“Awards”) will cease as of the Separation Date, unless you and the Company execute the Consulting Agreement, in which case vesting of the Awards shall continue pursuant to the terms of the Consulting Agreement.

 

6. Other Compensation or Benefits.  You acknowledge that, except as expressly provided in this Agreement, you will not receive any additional compensation, severance or benefits after the Separation Date, except for that provided under the Consulting Agreement.

 

7. Expense Reimbursements.  You agree that, within fifteen (15) days of the Separation Date, you will submit your final documented expense reimbursement statement reflecting all business expenses you incurred 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.

 

8. Return of Company Property.  Unless you and the Company execute the Consulting Agreement, you agree to return to the Company by the Separation Date all Company documents (and all copies thereof) and other Company property 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), credit cards, 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).

 

9. Proprietary Information and Post-Termination Obligations.  You acknowledge your obligations under the ICO Intellectual Property Agreement dated as of June 22, 2009 (a copy of which is attached hereto as Exhibit B) not to use or disclose any confidential or proprietary information of the Company.

 

10.  Nondisparagement. Each of you and the Company agree not to disparage each other, and in the case of the Company, you agree not to disparage the Company’s attorneys, directors, managers, partners, employees, agents and affiliates, in any manner likely to be harmful to you or the Company, or their respective business, business reputation or personal reputation; provided that you and the Company may respond accurately and fully to any question, inquiry or request for information when required by legal process.

11.  Cooperation and Assistance.  You agree that you will not voluntarily provide assistance, information or advice, directly or indirectly (including through agents or attorneys), to any person or entity in connection with any claim or cause of action of any kind brought against the Company, nor shall you induce or encourage any person or entity to bring such claims.  However, it will not violate this Agreement if you testify truthfully when required to do so by a valid subpoena or under similar compulsion of law.  Further, you agree to voluntarily cooperate with the Company if you have knowledge of facts relevant to any threatened or pending litigation against the Company by making yourself reasonably available without further compensation for interviews with the Company’s counsel, for preparing for and providing deposition testimony, and for preparing for and providing trial testimony.

 

12. Release of Claims.  In exchange for the Company’s agreement to enter into the Consulting Agreement, to which you would otherwise not be entitled, and except as otherwise set forth in this Agreement, you hereby generally and completely release the Company and its directors, officers, employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates, and assigns from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring at any time prior to and including the date you sign this Agreement.  This general release includes, but is not limited to: (a) all claims arising out of or in any way related to your employment with the Company or the termination of that employment, including by not limited to any claims relating to severance or any other benefit provided under the employment letter between you and the Company dated April 23, 2006, as amended on December 30, 2008; (b) all claims related to your compensation or benefits from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company; (c) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (d) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (e) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in Employment Act of 1967 (as amended) (the “ADEA”), the California Labor Code (as amended), the California Family Rights Act, and the California Fair Employment and Housing Act (as amended).  Notwithstanding the foregoing, you are not releasing the Company hereby from any obligation to indemnify you pursuant to the Articles and Bylaws of the Company, any valid fully executed indemnification agreement with the Company, applicable law, or applicable directors and officers liability insurance.  You represent that you have no lawsuits, claims or actions pending in your name, or on behalf of any other person or entity, against the Company or any other person or entity subject to the release granted in this paragraph.

 

13. Our Release.  Except as otherwise set forth in this Agreement, and only to the extent the ICO Global has actual knowledge of the Claim (as defined below) as of the Separation Date, ICO Global (and not DBSD North America, Inc. or any of its subsidiaries) hereby generally and completely releases, acquits and forever discharges you from any and all known claims, liabilities, demands, causes of action, costs, expenses, attorneys fees, damages, indemnities and obligations of every kind and nature, in law, equity, or otherwise (“Claim”), arising out of or in any way related to agreements, events, acts or conduct at any time prior to and including the execution date of this Agreement, including but not limited to:  all such claims and demands directly or indirectly arising out of or in any way connected with your employment with the Company; provided, however, that nothing in this paragraph shall be deemed to release you from your post-termination obligations or Claims arising out of your post-termination obligations under the ICO Intellectual Property Agreement attached as Exhibit B or to affect in any way the ability of the Company to address the prior overfunding of your Company 401(k) account (including by withdrawing funds from your Company 401(k) account).

 

14. ADEA Waiver. You acknowledge that you are knowingly and voluntarily waiving and releasing any rights you have under the ADEA, and that the consideration given for the waiver and releases you have given in this Agreement is in addition to anything of value to which you were already entitled.  You further acknowledge that you have been advised, as required by the ADEA, that:  (a) your waiver and release does not apply to any rights or claims that arise after the date you sign this Agreement; (b) you should consult with an attorney prior to signing this Agreement (although you may choose voluntarily not to do so); (c) you have twenty-one (21) days to consider this Agreement (although you may choose voluntarily to sign it sooner); (d) you have seven (7) days following the date you sign this Agreement to revoke this Agreement (in a written revocation sent to me); and (e) this Agreement will not be effective until the date upon which the revocation period has expired, which will be the eighth day after you sign this Agreement provided that you do not revoke it (the “Effective Date”).

 

15. Section 1542 Waiver.  In giving the release herein, which includes claims which may be unknown to you at present, you acknowledge that you have read and understand Section 1542 of the California Civil Code, which reads as follows:

 

 

You hereby expressly waive and relinquish all rights and benefits under that section and any law of any other jurisdiction of similar effect with respect to your release of claims herein, including but not limited to your release of unknown claims.

 

16. Representations. You hereby represent that you have been paid all compensation owed and for all hours worked, have received all the leave and leave benefits and protections for which you are eligible pursuant to the Family and Medical Leave Act, the California Family Rights Act, or otherwise, and have not suffered any on-the-job injury for which you have not already filed a workers’ compensation claim. However, you and the Company acknowledge that there may be a disability and or other insurance claim filed before you leave employment of the Company for a situation that is currently under investigation regarding your eye.

 

17. No Admission.  This Agreement does not constitute an admission by either you or 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.

 

18. Breach. You agree that upon any material breach of this Agreement you will forfeit all amounts paid or owing to you under this Agreement.  Further, you acknowledge that it may be impossible to assess the damages caused by your violation of the terms of paragraphs 8, 9, 10, 11, 12, 13, 14 and 15 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.

 

19. Arbitration. To ensure the rapid and economical resolution of any and all disputes that arise in connection with this Agreement, you and the Company agree that any and all disputes, claims, or causes of action, in law or equity, arising from or relating to the enforcement or interpretation of this Agreement (collectively, “Claims”), shall be resolved to the fullest extent permitted by law exclusively first, by mediation using a mediator mutually selected from Judicial Arbitration and Mediation Services, Inc. (“JAMS”), and if not thereby resolved, by final, binding, and (to the extent permitted by law) confidential arbitration in Oakland, California conducted by JAMS or its successors, under the then applicable JAMS rules.    Notwithstanding the above, excluded from this provision are any claims that by law are not subject to arbitration.  The arbitrator shall:  (1) have the authority to compel adequate discovery for the resolution of all Claims and to award such relief as would otherwise be permitted by law; and (2) issue a written arbitration decision including the arbitrator’s essential findings and conclusions and a statement of the award.  Judgment on the arbitration award may be entered upon the application of either party by any court of competent jurisdiction.  The Company shall pay all of the arbitrator’s fees in excess of the amount of those administrative fees you would have been required to pay if the Claims were asserted in a court of law.  You and the Company acknowledge that, by agreeing to this arbitration procedure, both you and the Company waive the right to resolve any Claims through a trial by jury or judge or by administrative proceeding. Nothing in this Agreement is intended to prevent you or the Company from obtaining injunctive relief in court if the award to which such party might obtain in arbitration may be rendered ineffectual without provisional relief.

 

20. Miscellaneous.  This Agreement, including Exhibits A and B, 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 State of California as applied to contracts made and to be performed entirely within California, without regard to choice of law principles.  The Company and you agree that each has had the opportunity to seek legal counsel and tax advice regarding this Agreement and the Consulting Agreement, and neither is relying on the other for legal or tax advice.  This Agreement may be executed in any number of counterparts, including any counterpart transmitted by electronic means such as email or facsimile, all of which when taken together shall constitute one agreement binding on each party, notwithstanding that each party is not a signatory to the same counterpart.

3.    Non-solicitation; non-Interference. I agree that during my employment with Company, I will not, either directly or indirectly, solicit, induce or encourage, or participate in soliciting, inducing or encouraging any employee, independent contractor, or consultant of Company to terminate his, her or its relationship with Company in order to become an employee, consultant, or independent contractor to or for any other person or entity.  For purposes of the foregoing restriction, an employee or consultant of Company includes any person or entity who is, or within the preceding three (3) month period has been, an employee or consultant of Company. I further agree that, during my employment with Company and at all times thereafter, I will not: (a) take any action to disrupt, damage or interfere with Company’s contractual relationships with its clients, employees, consultants, agents, vendors, investor, venture capital firm, or other financial institution, or induce any person or entity to breach any contractual obligation owed to Company; or (b) engage in any unlawful or improper activity to disrupt, damage or interfere with Company’s business, operations or activities.

 

4.    Company Materials.  I will safeguard and return to ICO when my service provider relationship ends, or sooner if ICO requests, all information, documents, electronic media and other property in my care, custody or control relating to my service provider relationship or ICO’s business, including without limitation any documents or electronic media that contain ICO’s Confidential Information.

 

5.    Service Provider’s Warranty.  I represent and warrant that I have disclosed all facts, if any, pertaining to restrictions on my ability to enter into this Agreement.  I further represent and warrant that I am not bound by any agreements with third parties that would prevent me from lawfully performing all duties requested of me by ICO.  I understand that it is ICO’s policy not to improperly obtain or use confidential, proprietary or trade secret information that belongs to third parties, and agree not to use such third-party confidential, proprietary or trade secret information for ICO’s benefit.

 

6.    No Guarantee of Continued Service Provider Relationship.  I understand this Agreement is not a guarantee of a continued service provider relationship, the duration of which is governed by the terms of the Separation Agreement and Consulting Agreement dated as of June 22, 2009.

 

7.    Equitable Relief.  I acknowledge that the provisions of this Agreement are essential to ICO and that a breach of any provisions of this Agreement can create a severe and unfair business disadvantage that cannot be adequately remedied by traditional legal recourse to damages.  Therefore, notwithstanding any limitations imposed by any Arbitration Agreement, ICO may enforce this Agreement directly in any court having appropriate jurisdiction and, in addition to any other remedy it may have at law, shall be entitled to injunctive or other equitable relief to prevent or curtail any breach of this Agreement.

 

8.    Attorneys Fees. If either party is required to take legal action (regardless of whether an actual lawsuit is filed), in order to enforce the terms of this Agreement against the other party, and substantially prevails in such action, the prevailing party shall be responsible for paying the other party’s reasonable costs and attorneys fees.

 

9.    Assignment to Successor Company.  In the event that the ownership or corporate form of ICO changes whether by acquisition of stock or assets and regardless of any change in the form or name of the employing entity, this Agreement shall be assignable by ICO to the entity that succeeds it without further notice to me.

10.1 Non-waiver.  Any delay or failure of either Party to insist upon or enforce strict performance of any provision in this Agreement shall not be construed as a waiver of its right to insist upon or enforce such provision in the future.

 

10.2 Controlling Law/Venue.  This Agreement shall be governed by the laws of the State of California.  Any legal proceeding shall be brought exclusively in the courts in Oakland, California which the parties agree is a convenient forum.

 

10.3 Severability.  If any provision of this Agreement is held to be unenforceable, the remaining provisions will nevertheless continue to be valid and enforceable to the maximum extent permitted by law.  The Agreement shall not be construed against ICO by reason of the drafting or preparation hereof.

 

10.4 Entire Agreement.  This Agreement, along with the Separation Agreement and Consulting Agreement, is the final and complete expression of the Parties’ agreement on these subjects, and replaces and supersedes all prior oral or written agreements on these subjects.  In the event of a conflict between this Agreement and the Separation Agreement and/or Consulting Agreement, this Agreement shall control.

 

10.5 Counterparts.  This Agreement may be executed in any number of counterparts, including any counterpart transmitted by electronic means such as email or facsimile, all of which when taken together shall constitute one agreement binding on each Party, notwithstanding that each Party is not a signatory to the same counterpart.

11.   Voluntary Agreement.  I acknowledge that I have carefully read this Agreement, that I understand its terms, and that I have entered in to the Agreement voluntarily.  I further acknowledge that I have been given the opportunity to discuss this Agreement with legal counsel and have taken advantage of that opportunity to the extent I wish to do so.