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EXHIBIT 10.21
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of this
15th day of May 1997 between ORBCOMM GLOBAL, L.P. (the "Company") and ROBERT F.
LATHAM (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive has heretofore for many years served in
an executive capacity with various entities and as a consequence thereof has
acquired significant management skills and experience; and
WHEREAS, the Company desires to employ the Executive as its
Executive Vice President and Chief Operating Officer for the term of employment
stated herein subject to the conditions hereof; and
WHEREAS, the Executive is willing and able to undertake
employment with the Company subject to the terms and conditions stated herein.
NOW, THEREFORE, the Company and the Executive each agree as
follows:
1. Employment; Duties. The Company hereby employs the
Executive and the Executive accepts employment as Executive Vice President and
Chief Operating Officer of the Company and President of ORBCOMM USA, L.P. In
such capacity, the Executive shall perform such executive duties and exercise
such powers for the Company and its subsidiaries (if any) as the General
Partners of the Company may assign to or vest in him from time to time
commensurate with his position as an Executive Vice President and Chief
Operating Officer of the Company and that until further notice by the General
Partners of the Company, such duties shall include management of the deployment
and operation of the Company's low-Earth orbit satellite communications system,
U.S. marketing and sales and financial operations and administration. During the
period of employment with the Company, the Executive will devote his best
efforts to the interest of the Company and will not engage in other employment
or in any activities detrimental to the best interests of the Company without
the prior written consent of the President and Chief Executive Officer of the
Company. The Company understands and agrees that, notwithstanding the foregoing,
and subject to Section 10(a), the Executive may serve during the term of this
Agreement as a director on the boards of directors of business, civic or
community corporations or entities other than the Company, if he shall obtain
the prior written approval of the Company's General Partners, which approval may
be withheld if the Company's General Partners reasonably determine that the
Executive's so serving as a director for any such
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corporation or entity would interfere with the performance of the Executive's
duties hereunder or would conflict with the best interests of the Company.
2. Term. This Agreement shall have a term of three years,
commencing on May 15, 1997 and ending on May 14, 2000, unless the term is
terminated earlier in accordance with this Agreement. This Agreement shall be
automatically extended from year to year thereafter for additional one year
periods under the same terms and conditions, unless either the Company or the
Executive notifies the other, in accordance with this Agreement, no later than
three months prior to the expiration of the then current term of this Agreement
of its intent to terminate this Agreement. On the expiration (but not
termination) of this Agreement at the end of term hereof, Executive shall be
eligible to become a Vice President, Special Projects and remain employed by the
Company, on terms and conditions to be mutually agreed to by the Company and
Executive, for a period of up to one year, provided that if Executive becomes
employed by another person or entity during such one year period, Executive
shall no longer be employed by the Company.
3. Compensation. During the term of this Agreement, the
Company shall pay to the Executive the following compensation:
(a) Base Salary. The Company shall pay to the
Executive compensation equal to an annual base salary at the
rate of one hundred eighty thousand dollars ($180,000) per
annum, prorated for any partial employment year, payable in
bi-weekly installments in arrears. During the term of this
Agreement, the Executive's compensation shall be reviewed by
the General Partners of the Company at least once every 12
months.
(b) Signing Bonus. The Company shall pay to the
Executive a signing bonus equal to $75,000, payable within
five business days of the date hereof, provided that, in the
event that within five years of the date hereof the Executive
receives any refunds or payments from any Country Club or
similar entity or transferee for membership dues repaid to the
Executive on the Executive's withdrawal from membership, the
Executive shall pay to the Company such refund up to $25,000.
(c) Bonus Plan. The Executive shall also participate
in the Company's Annual Incentive Bonus Plan (the "Bonus
Plan"), a copy of which is attached hereto as Attachment A,
provided that the Company, President and Chief Executive
Officer and the Executive agree to review and thereafter
revise the terms of the Bonus Plan by mutual agreement of the
Executive and the Company. For purposes of the Bonus Plan and
bonus amounts that may be payable to Executive for calendar
year 1997, Executive shall be deemed to have commenced
employment with the Company on January 1, 1997. From and after
the date hereof, the Executive shall be entitled to receive an
annual bonus of up to 50% (or any additional amount as may be
specified in the Bonus Plan as it may be modified as specified
herein or therein) of his annual base salary determined and
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payable in accordance with the terms and conditions of the
Bonus Plan as it may be modified as specified herein and
therein. The Executive and the Company shall mutually agree on
1997 Company and personal objectives as required by the Bonus
Plan.
(d) Stock Options. On the date hereof, the Executive
has been granted options (the "Options") to purchase 55,000
shares of the Common Stock, par value $.01 per share (the
"Common Stock"), of Orbital Communications Corporation
("OCC"). Each Option shall be exercisable for one share of
Common Stock at an exercise price of $26.50 (subject to
adjustment for any stock split, reclassification or
recapitalization of the Common Stock) per share and shall
otherwise be governed by the terms of the Orbital
Communications Corporation 1992 Stock Option Plan (the "Option
Plan"), the form of stock option agreement, a copy of which is
attached hereto as Attachment B and, where applicable, this
Agreement. Subject to the terms of Sections 7 and 8, the
Options shall vest and be exercisable in equal one-quarter
increments as follows:
(i) 25% of the Options shall be vested on the
date hereof;
(ii) 25% of the Options shall vest on the first
anniversary of the date hereof;
(iii) 25% of the Options shall vest on the second
anniversary of the date hereof; and
(iv) 25% of the Options shall vest on the third
anniversary of the date hereof.
4. Other Compensation and Benefits. In addition to the
compensation specified in Section 3, the Company shall provide the following to
the Executive:
(a) Relocation. The Company shall pay the Executive's
actual and reasonable relocation expenses to the United States
as outlined in its Relocation Policy, as modified (the
"Relocation Policy"), a copy of which is attached hereto as
Attachment C, up to a maximum of $50,000; provided that
relocation expenses incurred to move the Executive from
England to the United States and reimbursed by the Executive's
last employer shall not be reimbursable by the Company. At the
termination of this Agreement or the Executive's death or
disability resulting in the termination of his employment, the
Company shall pay the Executive's or any surviving spouse's
actual and reasonable relocation expenses to Canada (of the
types specified in the Relocation Policy), up to a maximum of
$50,000.
(b) Bridge Loan. In addition, at the Executive's
request at any time during the first year of his employment
with the Company, the Company shall provide the Executive with
a bridge loan in the amount of up to $50,000 to assist in the
purchase of a home in the Washington area. The loan shall be
an interest
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free loan. The Loan shall be payable within one
year from the date made, provided that, if the Executive is
terminated without Cause (as defined in Section 9), the term
of the loan shall be extended one year.
(c) Legal Review of this Agreement. The Company shall
pay the Executive's actual legal expenses incurred in the
review of any offer letter previously provided by the Company
to the Executive and this Agreement, up to $2,000.
(d) Benefits. During the term of this Agreement, the
Executive shall be entitled to paid vacation and sick leave as
made generally available to the senior executives of the
Company, and to participate in any profit sharing plan,
retirement plan, group life insurance plan or other insurance
plan or medical expense plan maintained by the Company for its
senior executives generally and, if applicable, their family
members. The Company reserves the right to discontinue or to
amend such plans to conform to legal requirements or for other
reasons, as determined by the Company to be in the best
interest of the business.
(e) Directors and Officers Insurance. The Company
shall use all commercially reasonable efforts to maintain
Directors and Officers Insurance covering such claims and in
such amounts as the Company shall determine to be appropriate.
5. Business Expenses; Professional Memberships. The Company
shall reimburse the Executive for all reasonable and necessary (a) business
expenses, including, but not limited to, travel expenses and telephone usage
charges incurred by him in the performance of his duties under this Agreement,
and (b) professional membership dues, against presentation of proper receipts or
other proof of expenditure, and subject to such reasonable guidelines or
limitations provided to the Executive, and which are to be applied prospectively
only as the General Partners or the Chief Executive Officer of the Company may
impose. Executive shall be furnished with a portable computer and two
appropriate docking stations one for use in his office and one for use in his
home, as well as a printer for use in his home.
6. Termination on Death or Disability. This Agreement shall
automatically terminate on the death or disability of the Executive. The
Executive shall be deemed to be disabled if the General Partners of the Company
shall determine that the Executive is unable to perform substantially all of his
duties under this Agreement for a continuous period in excess of ninety (90)
days because of a disabling illness or injury. During any disability period, the
Executive shall be entitled to compensation as specified in any relevant written
employment/benefit policies and procedures of the Company as may be in effect
from time to time.
7. Change of Control. In the event a person other than OCC or
Teleglobe Mobile Partners owns a majority of the general partnership interests
(or other similar equity interests) of the Company (a "Change of Control"), the
Executive shall have the option,
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exercisable within three months of the Change of Control, to terminate his
employment with the Company and receive the following benefits:
(a) Within 30 days of the exercise of such option by
the Executive, payment of (i) the remaining balance of the
Executive's base salary through the end of the term of this
Agreement plus (ii) an amount equal to 50% of the Executive's
then current annual base salary;
(b) Automatic vesting of all unvested Options; and
(c) Payment of the Executive's actual and reasonable
expenses to relocate to Canada (of the types specified in the
Relocation Policy), up to a maximum of $50,000.
8. Termination Without Cause. During the term of this
Agreement, the Company shall be entitled to terminate the Executive without
Cause, provided that if the Executive is terminated without Cause, the Executive
shall be entitled to receive the following benefits:
(a) A lump sum amount equal to 12 months annual base
salary, payable within 30 days of such termination;
(b) The vesting schedule for the Options shall be
revised for unvested options such that, vesting of the next
annual installment (e.g. 12,500) would occur in equal quarters
amounts (e.g. 3,125) for each full calendar quarter the
Executive was employed by the Company (from the last annual
vesting date) prior to the Executive's termination. In
addition, on the exercise of any vested options, payment of
any withholding taxes then due could be made by (i)
surrendering Common Stock held by the Executive having a fair
market value equal to such withholding tax obligation or (ii)
requesting that OCC withhold from the shares to be delivered
to the Executive on the exercise of vested Options a number of
shares of Common Stock having a fair market value equal to
such withholding tax obligation; and
(c) Payment of the Executive's actual and reasonable
expenses to relocate to Canada (of the types specified in the
Relocation Policy), up to a maximum of $50,000.
9. Termination For Cause or on Death. Notwithstanding any
other provision of this Agreement, the employment of the Executive and this
Agreement may be terminated by the Company on the death of the Executive or for
Cause. Termination for Cause shall be effective as of the date the Company gives
notice to the Executive in accordance with this Agreement. Termination for Cause
shall be limited to the following acts by, or conditions with respect to, the
Executive, as shall be determined by the General Partners acting in their
reasonable discretion:
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(a) chronic alcoholism;
(b) drug addiction;
(c) the Executive's (i) conviction for a felony or
any crime involving moral turpitude, fraud, or
misrepresentation or (ii) misappropriation or embezzlement of
funds or assets from the Company;
(d) any intentional act having the purpose and effect
of materially injuring the reputation, business or business
relationships of the Company;
(e) any breach by the Executive of the provisions of
this Agreement, including, without limitation, the agreements
contained in Sections 10(a) and (b) hereof; or
(f) committing acts amounting to gross negligence or
willful misconduct to the detriment of the Company or its
affiliates.
10. Company Matters.
(a) Proprietary Information and Inventions.
Concurrently with the execution of this Agreement, the
Executive has executed an Employee Non-Disclosure Agreement, a
copy of which is attached hereto as Attachment D. The
Executive agrees to abide by the terms and conditions set
forth therein.
(b) Non-Solicitation of Employees. The Executive
agrees that, during the term of his employment and for a
period of one year thereafter, he will not solicit or
encourage any employee of the Company to terminate his or her
employment with the Company or to accept employment with any
other employer with whom the Executive might become affiliated
subsequent to his termination.
(c) Resignation on Termination. On termination of his
employment, the Executive shall immediately resign any
directorships, offices or other positions that he may hold in
the Company or any of its affiliates.
11. Miscellaneous.
(a) Work Authorization. The Company shall be
responsible for obtaining all appropriate work authorization
papers necessary for the Executive to be employed by the
Company during the term of this Agreement.
(b) Entire Agreement; Binding Effect. This Agreement
sets forth the entire understanding between the parties as to
the subject matter of this Agreement and merges and supersedes
all prior agreements, commitments, representations, writings
and discussions between them; and neither of the parties shall
be bound by any obligations, conditions, warranties or
representations with
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respect to the subject matter of this Agreement, other than as
expressly provided in this Agreement or as duly set forth on
or subsequent to the date hereof in writing and signed by the
proper and duly authorized representative of the party to be
bound hereby. This Agreement is binding on the Executive and
on the Company and its successors and assigns (whether by
assignment, by operation of law or otherwise).
(c) Notices. All notices, approvals, consents,
requests or demands required or permitted to be given under
this Agreement shall be in writing and shall be deemed
sufficiently given three business days after being deposited
in the mail, registered or certified, postage prepaid, on
receipt if hand delivered or sent by facsimile (answerback
received) or one business day after being given to a reputable
overnight courier and addressed to the party entitled to
receive such notice at the following address (or other such
addresses as the parties may subsequently designate):
The Company: ORBCOMM Global, L.P.
21700 Atlantic Boulevard
Dulles, Virginia 20166
The Executive: 2121 Wilkes Ct.
Herndon, Virginia
If notice is given by any other method, it shall be deemed effective
when the written notice is actually received.
(d) Waivers. No party shall be deemed to have waived
any right, power or privilege under this Agreement or any
provisions hereof unless such waiver shall have been duly
executed in writing and acknowledged by the party to be
charged with such waiver. The failure of any party at any time
to insist on performance of any of the provisions of this
Agreement shall in no way be construed to be a waiver of such
provisions, nor in any way to affect the validity of this
Agreement or any part hereof. No waiver of any breach of this
Agreement shall be held to be a waiver of any other subsequent
breach.
(e) Governing Law; Jurisdiction. This Agreement shall
be governed by, and construed and enforced in accordance with,
the laws of the Commonwealth of Virginia, without giving
effect to the conflict or choice of law provisions thereof. In
addition, each party hereto irrevocably and unconditionally
agrees that any suit, action or other legal proceeding arising
out of this Agreement may be brought only in the Commonwealth
of Virginia.
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IN WITNESS WHEREOF, this parties hereto have executed this
Agreement as of the day and year first written above.
ORBCOMM Global, L.P.
By: ______________________________
Name: Alan L. Parker
Title: President
__________________________________
Robert F. Latham
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ORBCOMM GLOBAL, L.P.
NON-DISCLOSURE AGREEMENT
This Non-Disclosure Agreement (the "Agreement") is made and
entered into this 7th day of April, 1997 by and between ORBCOMM Global, L.P.
("ORBCOMM"), a Delaware corporation, with its principal place of business
located at 21700 Atlantic Boulevard, Dulles, Virginia 20166, and Robert F.
Latham ("Latham").
WHEREAS, Latham will provide consulting services to ORBCOMM
and in connection therewith will receive ORBCOMM proprietary or confidential
information;
NOW, THEREFORE, the parties hereto agree as follows:
1. PROPRIETARY INFORMATION. For purposes of this Agreement,
"ORBCOMM Proprietary Information" shall mean written, documentary or oral
information of any kind, including, but not limited to, (a) information of a
business, planning, marketing or technical nature, (b) models, tools, hardware
and software disclosed by ORBCOMM to Latham or generated by Latham in the course
of performing work under this Agreement, and (c) any documents, reports,
memoranda, notes, files or analyses that contain, summarize or are based upon
any of the foregoing. With respect to ORBCOMM Global, "Proprietary Information"
shall include any of the foregoing information of any of ORBCOMM USA, L.P. or
ORBCOMM INTERNATIONAL PARTNERS, L.P. Proprietary Information" shall not include
information that:
(i) is publicly available prior to the date of
this Agreement;
(ii) becomes publicly available after the date
of this Agreement through no wrongful act
of Latham;
(iii) is furnished to others by ORBCOMM without
similar restrictions on their right to use
or disclose;
(iv) is known by Latham without any proprietary
restrictions at the time of receipt of such
information from ORBCOMM or becomes
rightfully known to Latham without
proprietary restrictions from a source
other than ORBCOMM;
(v) is independently developed by Latham by
persons who did not have access, directly
or indirectly, to the Proprietary
Information; or
(vi) is obligated to be produced under order of
a court of competent jurisdiction or a
valid administrative or congressional
subpoena, provided that Latham promptly
notifies ORBCOMM of such event so that
ORBCOMM
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may seek an appropriate protective
order or waive compliance by Latham with
the terms of this Agreement.
2. CONFIDENTIALITY.
a. Latham shall protect all ORBCOMM Proprietary
Information as confidential information and, except with the prior written
consent of ORBCOMM or as otherwise specifically provided herein, shall not
disclose, copy or distribute the ORBCOMM Proprietary Information to any other
individual, corporation or entity for a period of three (3) years from the date
of disclosure by ORBCOMM or creation by Latham.
b. Latham shall not make any use of the ORBCOMM
Proprietary Information for his or her own benefit or for the benefit of any
other individual, corporation or entity.
c. Latham shall not disclose all or any part of the
ORBCOMM Proprietary Information to his or her affiliates, agents or
representatives (collectively, "Representatives") except on a need-to-know
basis. Latham agrees to inform any of his or her Representatives who receive
ORBCOMM Proprietary Information of the confidential and proprietary nature
thereof and of such Representative's obligations with respect to the maintenance
of the ORBCOMM Proprietary Information in conformance with the terms of this
Agreement.
d. Latham shall maintain the ORBCOMM Proprietary
Information with at least the same degree of care Latham uses to maintain his or
her own proprietary information. Latham represents that such degree of care
provides adequate protection for his or her own proprietary information.
e. Latham shall immediately advise ORBCOMM in writing
of any misappropriation or misuse by any person of the ORBCOMM Proprietary
Information of which Latham is aware.
f. Any documents or materials that are furnished by
or on behalf of ORBCOMM, and all other ORBCOMM Proprietary Information in
whatever form, including documents, reports, memoranda, notes, files or analyses
prepared by or on behalf of Latham, including all copies of such materials,
shall be promptly returned by Latham to ORBCOMM upon written request by ORBCOMM
for any reason.
3. NO LICENSES OR WARRANTIES. No license to Latham under any
trade secrets or patents is granted or implied by conveying ORBCOMM Proprietary
Information or other information to Latham; and none of the information
transmitted or exchanged by ORBCOMM shall constitute any representation,
warranty, assurance, guaranty or inducement by ORBCOMM to Latham with respect to
the infringement of patents or other rights of others.
4. REMEDY FOR BREACH. Latham acknowledges that the ORBCOMM
Proprietary Information is central to ORBCOMM's business and was developed by or
for
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ORBCOMM at a significant cost. Latham further acknowledges that damages
would not be an adequate remedy for any breach of this Agreement by Latham or
his or her Representatives and that ORBCOMM may obtain injunctive or other
equitable relief to remedy or prevent any breach or threatened breach of this
Agreement by Latham or any of his or her Representatives. Such remedy shall not
be deemed to be the exclusive remedy for any such breach of this Agreement, but
shall be in addition to all other remedies available at law or in equity to
ORBCOMM.
5. MISCELLANEOUS.
a. This Agreement contains the entire understanding
between Latham and ORBCOMM and supersedes all prior written and oral
understandings relating to the subject hereof. This Agreement may not be
modified except by a writing signed by both parties.
b. The construction, interpretation and performance
of this Agreement, as well as the legal relations of the parties arising
hereunder, will be governed by and construed in accordance with the laws of the
Commonwealth of Virginia, without regard to the choice or conflict of law
provisions thereof.
c. It is understood and agreed that no failure or
delay by ORBCOMM in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof, or the exercise of any other
right, power or privilege hereunder. No waiver of any terms or conditions of
this Agreement shall be deemed to be a waiver of any subsequent breach of any
term or condition. All waivers must be in writing and signed by the party sought
to be bound.
d. If any part of this Agreement shall be held
unenforceable, the remainder of this Agreement will, nevertheless, remain in
full force and effect.
IN WITNESS WHEREOF, each of the parties of this Agreement has
caused this Agreement to be signed as of the day and year first above written.
ORBCOMM GLOBAL, L.P.
By: ______________________________ ____________________________
Mary Ellen Seravalli Robert F. Latham
Senior Vice President and General Counsel
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