EXHIBIT 10.22
*** TEXT OMITTED AND FILED SEPARATELY CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R.
SECTIONS 200.80(b)(4) AND 230.406
EXECUTION COPY
EMPLOYMENT AGREEMENT
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The parties to this Employment Agreement (the "Agreement") are John
Stolte (the "Executive"), residing at 10093 Coffee Tree Court, Manassas,
Virginia 20110, and ORBCOMM Inc. (the "Company"), a company organized under the
laws of Delaware, with offices located at 21700 Atlantic Boulevard, Dulles,
Virginia 20166.
The Company desires to provide for the Executive's employment by the
Company, and the Executive desires to accept such employment under the terms and
conditions contained herein, and the parties hereto have agreed as follows:
1. Employment. The Company shall employ the Executive, and the Executive
shall serve the Company, as Executive Vice President - Technology and
Operations, with duties and responsibilities compatible with that position. 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 offices in Dulles, Virginia.
2. Term of Employment. The Executive's employment under this Agreement
shall commence as of June 1, 2006 (the "Start Date") and shall continue until
December 31, 2008, 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.
Upon the natural expiration of the Term (or any extended Term), (a) the
Executive's employment will become "at-will" and will be terminable by either
party hereto for any reason not prohibited by law or for no reason, and with or
without notice, (b) Section 4(e) below shall no longer be applicable and (c) the
post-employment restrictions on the Executive under Section 7(b) below will no
longer be applicable.
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. During the Term, the Executive shall be entitled to
receive an annual base salary (the "Base Salary") of $225,000. Any Base Salary
increase will be subject to the sole discretion of the Company's Board of
Directors (the "Board"). 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. For each calendar year beginning with the 2006 calendar year,
the Executive shall also be eligible to receive a bonus (the "Bonus") equal to
up to 75% of Base Salary, determined based on the achievement of performance
targets (both financial and qualitative) established each year by the Board. In
order to receive such a Bonus, if any, the Executive must be actively employed
by the Company on the last day of the fiscal year for which the Bonus is being
paid and not have had his employment terminated with "cause" pursuant to
Section 4(c) below prior to the payment of such Bonus. 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. Subject to the Executive satisfying and
continuing to satisfy any plan or program eligibility requirements, 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"), equivalent to those benefits provided to the Company's executives
generally. 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. To the extent the Company maintains a
director's and officer's liability insurance policy, the Executive shall be
covered by such policy to the same extent as the Company's other senior officers
(however, nothing in this Agreement shall require the Company to maintain such a
policy). 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. The number and/or price of any
equity-based award granted to the Executive shall be determined by the Board.
Notwithstanding the foregoing, the Board will grant to the Executive an award
consisting of [182,000] restricted stock units, the terms of such award to be
set forth in a separate written 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. In the event that the Company requires the
Executive to make weekly trips of greater than 200 miles (e.g., to the Company's
offices in New Jersey), then, instead of (and not in addition to) having those
travel expenses reimbursed pursuant to usual Company policy, the Company will
provide the Executive with a $600 monthly car allowance.
(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.
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4. Termination of Employment.
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(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 twenty (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 in its sole discretion, to terminate the employment of
the Executive for any reason whatsoever with or without "cause" (as defined
below). The Executive's employment shall not be deemed to have been terminated
with "cause" unless and until (a) he shall have received written notice from the
Company advising him of the specific acts or omissions alleged to constitute
"cause" and (b) in the case of (i) negligence by the Executive in the
performance of his duties, or (ii) the Executive's material breach of this
Agreement, those acts or omissions continue uncorrected for fifteen (15) days
after he shall have received written notice to correct them.
As used in this Agreement, termination with "cause" shall mean only the
Executive's involuntary termination for reason of: (i) negligence by the
Executive in the performance of his duties; (ii) embezzlement by the Executive
from the Company; (iii) conviction of, or plea of guilty or no contest to, a
felony; (iv) any action or omission by the Executive that is injurious to the
financial condition or business reputation of the Company; or (v) the
Executive's material breach of this Agreement.
(d) Termination by the Executive. The Executive shall have the right to
terminate his employment with the Company by providing 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.
(e) Severance. If the Executive's employment is terminated pursuant to
Sections 4(a) or 4(b) above during the Term, then the Executive, or his estate,
as applicable, shall be entitled to continue to receive his then Base Salary for
one (1) year immediately following such termination. If the Company shall
terminate the Executive's employment without "cause" pursuant to Section 4(c)
above during the Term, then the Executive shall be entitled to continue to
receive his then Base Salary for one (1) year following the employment
termination date. All
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payments under this Section 4(e) are conditioned upon the Executive's execution
of, and the effectiveness of the release attached hereto as Exhibit A (the
"Release"), and are payable in regular installments consistent with normal
Company payroll practices in effect from time to time. Subject only to
Executive's (or his estate's) execution and effectiveness of the Release, the
Company's obligation under this Section 4(e) shall be absolute and
unconditional, and the Executive shall be entitled to such severance payments
regardless of the amount of compensation and benefits the Executive may earn or
be entitled to with respect to any other employment he may obtain during the
period for which severance payments are payable.
If the Company terminates the Executive's employment with "cause"
pursuant to Section 4(c) above, or if the Executive's employment is terminated
for any reason following the expiration of the Term, then the Executive shall
not be entitled to any further payments under this Agreement, including Base
Salary, Bonus, Employee Benefits, or Severance, after the date of termination,
but Executive shall be entitled to all Base Salary, Bonus and Employee Benefits
that have accrued prior to the effective date of such termination.
To the extent that any amount payable under this Agreement constitutes
amounts payable under a "nonqualified deferred compensation plan" (as defined in
Internal Revenue Code Section 409A (hereinafter, "Section 409A")) following a
"separation from service" (as defined in Section 409A), including any amount
payable under this Section 4, then, notwithstanding any other provision in this
Agreement to the contrary, such payment will not be made until the date that is
six months following the Executive's "separation from service," but only if the
Executive is then deemed to be a "specified employee" under Section 409A.
5. Change of Control. If a "Change of Control" occurs, 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 continues the Executive's employment on substantially
equivalent terms. This Agreement shall be binding on any and all successors
and/or assigns of the Company.
"Change of Control" means (a) the Company's merger or consolidation with
another corporation or entity, (b) the Company's transfer of all or
substantially all of its assets to another person, corporation, or other entity,
or (c) a sale of the Company's stock in a single transaction or series of
related transactions that results in the holders of the outstanding voting power
of the Company immediately prior to such transaction or series of transactions
owning less than a majority of the outstanding voting securities for the
election of directors of the surviving company or entity immediately following
such transaction or series of transactions (other than any registered,
underwritten public offering by the Company of the Company's stock or pursuant
to any stock-based compensation plan of the Company).
6. Arbitration. Except as provided in Section 7(h) below, any dispute or
controversy between the parties hereto, whether during the Term or thereafter,
including without
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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
Washington, DC 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. The parties shall
endeavor to 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. ss. 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 or 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 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.
7. Obligations of the Executive.
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(a) Protectable Interests of the Company. The Executive acknowledges
that he has played 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
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such interests.
(b) Non-Competition. During the Executive's employment and for the one
(1) 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 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. For purposes of
this Section 7(b) and Section 7(c) below, "Business" shall mean the business of
offering wireless data communication services, including for the purpose of
tracking and/or monitoring fixed or mobile assets, the business of designing,
manufacturing or distributing modems that operate on such services, 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 7(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 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 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 7(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
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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 7(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 Information.
For purposes of this Agreement, "Confidential Information" means any
confidential or proprietary information which 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 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
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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 7 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 7 is for any reason held by an
arbitrator or court to be excessively broad as to duration, activity,
geographical scope, or subject, 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 7 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 7, 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 7(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 7 which may be pursued or availed
of by the Company.
(i) Severance Payments. If the Company fails to make severance payments
to the Executive that are required under Section 4(e) above, then the provisions
of Sections 7(b) and 7(c) above shall automatically terminate and shall no
longer be binding upon the Executive after the date that the Company fails to
make any severance payments required under Section 4(e) above. Nothing in this
Section 7(i) shall be deemed to limit the Executive's remedies at law or equity
for any breach by the Company of its obligation to make severance payments
pursuant to Section 4(e) above.
8. Miscellaneous.
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(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; Amendment. 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
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employment, and supersedes all previous agreements, arrangements, and
understandings, written or oral, relating thereto. This Agreement supersedes and
replaces the Agreement by and between the Company and the Executive dated as of
July 2004.
This Agreement may not be amended except by a written agreement signed
by the Company and the Executive. Notwithstanding the foregoing, the parties
hereto acknowledge that the requirements of Code Section 409A are still being
developed and interpreted by government agencies, that certain issues under Code
Section 409A remain unclear at this time, and that the parties hereto have made
a good faith effort to comply with current guidance under Code Section 409A.
Notwithstanding anything in this Agreement to the contrary, in the event that
amendments to this Agreement are necessary in order to comply with future
guidance or interpretations under Code Section 409A, including amendments
necessary to ensure that compensation will not be subject to Code Section 409A,
the Executive agrees that the Company shall be permitted to make such
amendments, on a prospective and/or retroactive basis, in its sole discretion.
(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 Commonwealth of Virginia applicable to agreements
made and to be performed in the Commonwealth of Virginia.
IN WITNESS WHEREOF, the parties hereto have executed this document as of
the 30th day of August, 2006 to be effective as of June 1, 2006.
ORBCOMM INC.
By: /s/ Christian Le Brun
------------------------------
Name: Christian Le Brun
------------------------------
Title: Senior Vice President
and General Counsel
------------------------------
/s/ John Stolte
---------------------------------
John Stolte
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EXHIBIT A -- GENERAL RELEASE
----------------------------
FOR AND IN CONSIDERATION OF the employment agreement to which this
General Release is attached, I, John Stolte, agree, on behalf of myself, 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") which
I, 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 (except as
provided below), 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.ss.ss.2101 et seq., the Fair Labor Standards Act of 1938, as amended, 29
U.S.C.ss.ss. 201 et seq., the Family and Medical Leave Act of 1993, as amended,
29 U.S.C.ss.ss.2601 et seq., Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C.ss.ss.2000e et seq., the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C.ss.ss.621 et seq. (the "ADEA"), the Americans with
Disabilities Act of 1990, as amended, 42 U.S.C.ss.ss.12101 et seq., the Employee
Retirement Income Security Act of 1974, as amended, 29 U.S.C.ss.ss.1001 et seq.,
the Virginia Human Rights Act, as amended, Va. Code Ann.ss.ss.2.1-714 et seq.,
the Virginia Persons with Disabilities Act, as amended, Va. Code
Ann.ss.ss.51.5-1 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 which 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; provided,
however, that this General Release does not release or discharge any claims that
I may have against the Company for breach of its obligation to make severance
payments to me after the termination of my employment in accordance with Section
4(e) of the employment agreement to which this General Release is attached.
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Except as to any claims that I may file for any breach by the Company of
Section 4(e) of the employment agreement to which this General Release is
attached, I affirm that I have not filed, and agree 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
that 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 the General Counsel at the Company by
delivering such written notice to him at .
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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 Commonwealth
of Virginia without giving effect to its conflict of laws principles.
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John Stolte Date
STATE OF )
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: ss.:
COUNTY OF )
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On the day of in the year 200 , before me, the
undersigned, personally appeared JOHN STOLTE, 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
2006 PERFORMANCE TARGETS FOR JOHN STOLTE EMPLOYMENT AGREEMENT
SUMMARY OF COMPENSATION 2006
- ----------------------- --------
Base Salary $225,000
% Chg
Bonus at performance thresholds
Minimum $ 33,750 15%
Target $168,750 75%
INCENTIVE COMPENSATION TARGETS 2006
- ------------------------------ -----------
Net Subscriber Additions [***]
EOP Subscribers [***]
EBITDA [***]
ANNUAL CASH BONUS TARGETS BONUS % OF TARGET
- ----------------- ------- ------- -----------
Net Subscriber Additions
Minimum [***] $16,875 7.5%
% of target 90.0%
Target [***] $28,125 12.5%
% of target 100.0%
EBITDA
Minimum [***] $16,875 7.5%
% of target 110.0%
Target [***] $28,125 12.5%
% of target 100.0%
Qualitative Targets
[***] $56,250 25.0%
[***] $56,250 25.0%
* The [***] shall be measured as set forth in the
attached Schedule A.
Schedule A to 2006 Performance Targets Under
Employment Agreement with John Stolte
[***]