EXHIBIT 10.24
FORM OF
ORBCOMM INC.
RESTRICTED STOCK UNIT AWARD
To: [Name]
In accordance with the 2006 Long-Term Incentives Plan (the
"Plan") of ORBCOMM Inc. (the "Company"), you (the "Participant"), as a key
employee of the Company, have been granted an award (the "Award") of restricted
stock units ("RSUs"). Each RSU represents the right to receive one share of
Stock.
Capitalized terms used in this Award and not otherwise defined herein
will have the respective meanings ascribed to them in the Plan.
The RSUs have been awarded to you upon the following terms and conditions:
1. RIGHTS OF THE PARTICIPANT WITH RESPECT TO THE RSUS
(a) NO STOCKHOLDER RIGHTS. The RSUs granted pursuant to this Award do
not and will not entitle Participant to any rights of a stockholder of the
Company. The rights of Participant with respect to the RSUs will remain
forfeitable at all times prior to the date on which such rights become vested,
and the restrictions with respect to the RSUs lapse, in accordance with Section
2.
(b) ADDITIONAL RESTRICTED STOCK UNITS. As long as Participant holds
RSUs granted pursuant to this Award, the Company will credit to Participant, on
each date that the Company pays a cash dividend to holders of Stock generally,
an additional number of RSUs ("Additional RSUs") equal to the total number of
whole RSUs and Additional RSUs previously credited to Participant under this
Award multiplied by the dollar amount of the cash dividend paid per share of
Stock by the Company on such date, divided by the Fair Market Value of a share
of Stock on such date. Any fractional RSUs resulting from such calculation will
be included in the Additional RSUs. A report showing the number of Additional
RSUs so credited will be sent to Participant periodically, as determined by the
Company. The Additional RSUs so credited will be subject to the same terms and
conditions as the RSUs to which such Additional RSUs relate and the Additional
RSUs will be forfeited in the event that the RSUs with respect to which such
Additional RSUs were credited are forfeited.
(c) CONVERSION OF RESTRICTED STOCK UNITS; ISSUANCE OF STOCK. No shares
of Stock will be issued to Participant prior to the date on which the RSUs vest,
and the restrictions with respect to the RSUs lapse, in accordance with Section
2. Neither this Section 1(c) or the Plan nor any action taken pursuant to or in
accordance with this Section 1(c) will be construed to create a trust of any
kind. After any RSUs vest pursuant to Section 2, the Company will promptly cause
to be issued in book-entry form, registered in Participant's name or in the name
of Participant's
legal representatives, beneficiaries or heirs, as the case may be, shares of
Stock in payment of such whole number of vested RSUs and Additional RSUs. The
value of any fractional RSUs will be paid in cash at the time shares of Stock
are delivered to Participant in payment of the RSUs and Additional RSUs.
2. VESTING. You will be deemed to have earned the RSUs and Additional RSUs
subject to this Award as follows:
(a) TIME VESTED RSUS. The number of RSUs (and any related Additional
RSUs) set forth on Schedule A (the "Time Vested RSUs") will vest as set
forth on Schedule A; and
(b) PERFORMANCE VESTED RSUS. The number of RSUs (and any related
Additional RSUs) set forth on Schedule B (the "Performance Vested RSUs") will
vest based on achievement by you and/or the Company (as determined in the sole
discretion of the Committee) of the performance targets as set forth in
Schedule B.
(c) EARLY VESTING UPON CHANGE OF CONTROL. Subject to the other terms
and conditions set forth herein, upon the effective date of a Change in Control
having a value in excess of $4.03 per share (as adjusted for any stock
dividends, combinations or splits following December 30, 2005), all of the
RSUs and Additional RSUs will become immediately and unconditionally vested, and
the restrictions with respect to all of the RSUs and Additional RSUs will lapse
(without regard to the satisfaction of any time-based or performance criteria).
For purposes of this Award, a "Change in Control" will be limited to a "change
in control event" that meets the requirements of Internal Revenue Code Section
409A, as amended from time to time, including any proposed and final regulations
and other guidance issued thereunder by the Department of the Treasury and/or
the Internal Revenue Service (collectively, "Section 409A").
(d) VESTING UPON TERMINATION OF EMPLOYMENT. Except as otherwise
specifically provided in a written agreement between the Participant and the
Company, if, prior to vesting of the RSUs pursuant to Section 2, Participant
ceases to be employed by the Company for any reason (voluntary or involuntary)
including death or permanent long-term disability, unless there are arrangements
in place between the Company and Participant that preclude a "separation from
service" under Section 409A, then, subject to the other terms and conditions set
forth herein, Participant's rights to all of the unvested RSUs and Additional
RSUs will immediately expire and terminate as of the date of such termination of
employment.
3. RESTRICTION ON TRANSFER. The RSUs and Additional RSUs will be deliverable,
during your lifetime, only to you and are not transferable by you other than
(a) by will or by the laws of descent and distribution; or (b) by gift to
your spouse or natural, adopted or step-children or grandchildren ("Immediate
Family Members") or to a trust for the benefit of one or more of your Immediate
Family Members or to a family charitable trust established by you or a member
of your family.
4. ADJUSTMENTS TO RESTRICTED STOCK UNITS. In the event of any change in or
affecting the outstanding shares of Stock by reason of a stock dividend or
split, merger or consolidation, or various other events, adjustments will be
made as appropriate in connection with the RSUs as contemplated in the Plan.
Notwithstanding anything in this paragraph to the contrary, no adjustment will
be made to the Award to the extent that the adjustment would constitute an
additional deferral or acceleration of payment in violation of Section 409A.
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6. INCOME TAX MATTERS. The Company will have the right, in connection with the
vesting of RSUs under this Award, (a) to deduct from any payment otherwise due
by the Company to Participant or any other person receiving delivery of cash or
shares of Stock an amount equal to any taxes required to be withheld by law with
respect to such delivery, (b) to require Participant or any other person
receiving such delivery to pay to the Company an amount sufficient to provide
for any such taxes so required to be withheld or (c) to sell such number of
shares of Stock otherwise deliverable as may be necessary so that the net
proceeds of such sale will be an amount sufficient to provide for any such taxes
so required to be withheld.
7. FORFEITURE IN THE EVENT OF COMPETITION AND/OR SOLICITATION.
The Participant acknowledges that his or her continued employment with the
Company and the RSUs are sufficient consideration for the obligations contained
in this Award, including, without limitation, the restrictions imposed upon the
Participant by this Section 7.
(a) NON-COMPETITION. The Participant expressly agrees and covenants
that during the Participant's employment and for the one (1)-year period
immediately thereafter, the Participant will not, anywhere in the world, whether
directly or indirectly, for himself or herself or for any third party, (i)
engage in any business activity, (ii) provide professional services to another
person or entity (whether as an employee, consultant, or otherwise), or (iii)
become a partner, member, principal, or stockholder having a 10% or greater
interest in any entity, but in each such case, only to the extent that such
activity, person or entity is in competition with the Business (as defined
below). The Participant 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
Participant's obligation under this Section 7(a) would be inappropriate and
counter to the protections sought by the Company hereunder.
(b) NON-SOLICITATION. The Participant expressly agrees and covenants
that during the Participant's employment and for the one (1)-year period
immediately thereafter, the Participant will not, anywhere in the world, whether
directly or indirectly, for himself or herself or for any third party: (i)
solicit any business or contract, or enter into any business or contract,
directly or indirectly, with any supplier, licensee, customer or partner 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 Participant's
employment, or (B) was a prospective supplier, licensee, customer, or partner of
the Business at the time of the Participant'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 individual who was employed by
the Company's or its subsidiaries' within six (6) months prior to the
termination of the Participant'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 Participant 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
Participant's obligation under this Section 7(b) would be inappropriate and
counter to the protections sought by the Company hereunder.
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(c) FORFEITURE. If the Company determines that the Participant has
violated any provisions of Section 7(a) or (b), then the Participant agrees and
covenants that:
(i) any portion of RSUs and Additional RSUs (whether vested or
unvested) that has not been paid to the Participant as of the date of such
determination will be immediately rescinded;
(ii) the Participant will automatically forfeit any rights the
Participant may have with respect to the RSUs or Additional RSUs as of the date
of such determination; and
(iii) if the Participant has received shares of Stock as payment with
respect to vested RSUs or Additional RSUs under the terms of this Award within
the one (1) year period immediately preceding or following a violation of
Section 7(a) or the one (1) year period immediately preceding a violation of
Section 7(b), upon the Company's demand, the Participant will immediately
deliver to the Company a certificate or certificates for shares of Stock (1)
equal to the number of shares paid to the Participant under this Award if any
part of such payment was made in shares of Stock and/or (2) equal to the value
paid to the Participant under the terms of this Award if any part of such
payment was made in cash.
(d) DEFINITION OF BUSINESS. For purposes of Section 7(a) and Section
7(b), "Business" will mean the business of offering wireless data communication
services through a proprietary satellite communication network, including for
the purpose of tracking and/or monitoring fixed or mobile assets, or the
business of designing, manufacturing or distributing modems that operate on such
services.
(e) SEVERABILITY. The Participant acknowledges and agrees that the
period, scope and geographic areas of restriction imposed upon the Participant
by the provisions of Section 7 are fair and reasonable and are reasonably
required for the protection of the Company. In the event that any part of this
Award, including, without limitation, Section 7, is held to be unenforceable or
invalid, the remaining parts of Section 7 and this Award will nevertheless
continue to be valid and enforceable as though the invalid portions were not a
part of this Award. If any one of the provisions in Section 7 is held to be
excessively broad as to period, scope and geographic areas, any such provision
will be construed by limiting it to the extent necessary to be enforceable under
applicable law.
(f) ADDITIONAL REMEDIES. The Participant acknowledges that breach by
the Participant of this Award would cause irreparable harm to the Company and
that in the event of such breach, the Company will have, in addition to the
remedies set forth in Section 7(c), monetary damages and other remedies at law
or in equity, the right to an injunction, specific performance and other
equitable relief to prevent violations of the Participant's obligations
hereunder.
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9. MISCELLANEOUS.
(a) This Award does not confer on Participant any right with respect to
the continuance of any relationship with the Company or its subsidiaries, nor
will it interfere in any way with the right of the Company to terminate such
relationship at any time.
(b) The Company will not be required to deliver any shares of Stock
upon vesting of any RSUs and Additional RSUs until the requirements of any
federal or state securities laws, rules or regulations or other laws or rules
(including the rules of any securities exchange) as may be determined by the
Company to be applicable are satisfied, provided that in all cases the delivery
of any shares of Stock will be made within such time frame following the
scheduled payment date as is required to comply with the requirements of Section
409A.
(c) An original record of this Award and all the terms hereof, executed
by the Company, is held on file by the Company. To the extent there is any
conflict between the terms contained in this Award and the terms contained in
the original held by the Company, the terms of the original held by the Company
will control.
ORBCOMM Inc.
By:
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Christian G. Le Brun
Senior Vice President and
General Counsel
Dated:
Acknowledged and Agreed:
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Name:
Date:
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