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EXHIBIT 10.22
ORBCOMM GLOBAL, L.P.
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into as of
the 18th day of March, 1998, by and between ORBCOMM GLOBAL, L.P., a Delaware
limited partnership ("ORBCOMM Global"), with its principal place of business
located at 2455 Horse Pen Road, Suite 100, Herndon, Virginia 20171, and ORBCOMM
CANADA INC. (the "Consultant"), with its principal place of business located at
1000 rue de la Gauchetiere ouest, 25th Floor, Montreal, Quebec, H3B 4X5,
Canada.
W I T N E S S E T H:
WHEREAS, the Consultant has expertise in particular areas relevant to
ORBCOMM Global's business;
WHEREAS, the Consultant desires to provide business and industry
consultancy services to ORBCOMM Global that draw upon such expertise; and
WHEREAS, ORBCOMM Global desires to engage the Consultant to render
services to ORBCOMM Global that draw upon the Consultant's expertise.
NOW THEREFORE, in consideration of the mutual promises and covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I - SCOPE
(a) During the term of this Agreement as provided in Article II
hereof, the Consultant shall furnish to ORBCOMM Global the business and
industry consultancy services described in Exhibit A hereto (the "Services").
The Services shall be performed at such times as are mutually agreeable to the
parties. All the Services shall be furnished at the offices of ORBCOMM Global
or at such other places as may be directed by ORBCOMM Global.
(b) The Consultant is an independent contractor and nothing in
this Agreement shall be construed as creating the relationship of employer and
employee between the parties. The Consultant is not subject to or entitled to
any benefits under the provisions of ORBCOMM Global's Employee Relations
policies.
ARTICLE II - TERM
Notwithstanding the date set forth on page 1 of this Agreement, this
Agreement shall cover services provided by Consultant for the period from
January 1, 1998 through and including December 31, 1998, unless earlier
terminated by one of the parties in accordance with Article VI.
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ARTICLE III - CONSIDERATION
(a) Subject to the terms and conditions of this Agreement, as
compensation for the Services, ORBCOMM Global shall pay the Consultant, for the
Services of Mr. William J. Meder, at the rate of One Thousand Dollars
(U.S.$1,000) per day, but in any event not to exceed Four Thousand Dollars
(U.S.$4,000) in any calendar week.
(b) ORBCOMM Global shall reimburse the Consultant for reasonable
expenses incurred by the Consultant for pre-authorized travel outside a fifty
(50) mile radius of the Consultant's office. Expenses shall include reasonable
coach class transportation and room and board expenses associated with such
travel. An accounting of such travel and expenses, including all receipts,
shall be submitted along with the invoices presented in accordance with Article
IV.
(c) The Consultant shall have no authority to purchase goods or
services for or on behalf of ORBCOMM Global under the terms of this Agreement.
ARTICLE IV - INVOICING
The Consultant shall present an invoice for professional
services detailing the time spent and the Services rendered under this
Agreement. Payments by ORBCOMM Global for the Services rendered shall be due
upon presentation and shall be made within 30 days of receipt of an invoice
submitted by the Consultant, provided that payments shall not be made more
frequently than once per month. All invoices shall be delivered to the
authorized representative set forth in Article XIV.
ARTICLE V - DRAWINGS, RECORDS AND OTHER DATA
All drawings, designs, specifications, data and other memoranda or
records of value prepared by, or otherwise under the control of the Consultant
in connection with the Services shall be and shall remain the property of
ORBCOMM Global.
ARTICLE VI - TERMINATION
ORBCOMM Global or the Consultant may, at any time, by giving the other
party ten (10) days' notice in writing, terminate this Agreement. This
Agreement may also be terminated immediately upon any breach of its terms by
either party. In the event of termination, ORBCOMM Global shall be subject to
no liability, except to pay the Consultant for the Services performed up to and
including the date of termination in accordance with Article III. The
provisions contained in Articles V, VII, VIII, IX and X shall survive
expiration of this Agreement.
ARTICLE VII - PATENTS AND COPYRIGHTS; PROPRIETARY RIGHTS
The Consultant hereby irrevocably assigns to ORBCOMM Global all right,
title and interest in and to all inventions and discoveries, whether or not
patentable and whether or not reduced to practice, and all other work product
of any nature, whether or not copyrightable, made, conceived or authored by the
Consultant in the course of performing the Services or any other work under
this Agreement and all
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tangible embodiments of the foregoing ("Work Product") and all patents,
copyrights, trademarks, trade secrets and all other intellectual property
rights therein and any extensions and renewals thereof. The Consultant shall
promptly furnish ORBCOMM Global with complete information with respect to all
Work Product whenever made, conceived or authored by the Consultant. All
copyrightable Work Product created by the Consultant in the course of
performing the Services or any other work under this Agreement shall be deemed
to be a "work made for hire" in accordance with 17 U.S.C. Section 101 belonging
exclusively to ORBCOMM Global. ORBCOMM Global shall have the exclusive right
to obtain and hold solely in its own name all patents, copyrights,
registrations, trademark registrations, trade secrets and other such protection
for the Work Product as may be appropriate to the subject matter, and any
extensions or renewals thereof. The Consultant shall provide ORBCOMM Global,
and any person designated by ORBCOMM Global, all reasonably necessary
cooperation in connection with ORBCOMM Global's perfection of its patent,
trademark, copyright, trade secret and other rights in the Work Product and
ORBCOMM Global's ownership thereof, including without limitation signing all
documents reasonably requested by ORBCOMM Global both before and after the
termination of this Agreement.
ARTICLE VIII - NON-COMPETITION
During the term of this Agreement and for a period of twelve (12)
months thereafter, the Consultant shall not perform any services or render
similar business and industry consultancy services to any third party or
parties or for the Consultant's own account, if such parties or the Consultant
provide services or products that compete, directly or indirectly, with the
satellite-based mobile data and message communication services or products
supplied by ORBCOMM Global or its affiliates.
ARTICLE IX - PROTECTION OF PROPRIETARY INFORMATION
Information disclosed by one party to the other shall be subject to
the terms and conditions of the Mutual Non-Disclosure Agreement dated DECEMBER
19, 1995 between the parties, and the parties agree to abide by the terms and
conditions set forth therein.
ARTICLE X - GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Virginia, without giving effect to the conflict
or choice of law provisions thereof. The Consultant agrees to comply with all
international traffic in arms regulations and with the Prohibited Foreign Trade
Practices Act, the current forms of which are attached as Exhibits B and C.
ARTICLE XI - ASSIGNMENT
This Agreement and the rights and obligations of the parties hereunder
may not be assigned in whole or in part, by Consultant without the prior
written consent of ORBCOMM.
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ARTICLE XII - SEVERABILITY
If any provision of this Agreement, or the application thereof, shall,
for any reason and to any extent, be invalid or unenforceable, the remainder of
this Agreement and the application of such provisions to other persons or
circumstances shall not be affected thereby, but rather shall be enforced to
the maximum extent permissible under applicable law.
ARTICLE XIII - NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed given upon receipt if delivered personally or by facsimile
(answerback received), one (1) business day after being sent by express or
overnight mail, or three (3) business days after being sent by registered or
certified mail, return receipt required, postage prepaid, to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice, provided that such notice shall be effective only upon receipt
thereof):
a. If to ORBCOMM Global:
ORBCOMM Global, L.P.
2455 Horse Pen Road
Suite 100
Herndon, Virginia 20171
Attention: Legal Department
Telephone: (703) 406-5521
Facsimile: (703) 406-5399
b. If to Consultant:
ORBCOMM Canada Inc.
1000 rue de la Gauchetiere ouest
25th Floor
Montreal, Quebec, H3B 4X5
Canada
Attention: Mr. William J. Meder
Telephone: (514) 868-7262
Facsimile: (514) 868-8186
ARTICLE XIV - DESIGNATION OF ORBCOMM GLOBAL AUTHORIZED REPRESENTATIVE
The person authorized to direct the Consultant on behalf of ORBCOMM
Global (as referred to in Article I) is Scott Webster.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ORBCOMM GLOBAL, L.P. ORBCOMM CANADA INC.
By: By:
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Name Robert F. Latham Name:
Title: President Title:
Telephone: (703) 406-5586 Telephone:
Facsimile: (703) 406-3508 Facsimile:
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EXHIBIT A
CONSULTING SERVICES TO BE PERFORMED
The Consultant shall perform the following Services:
A. Arrange meetings with Senior Executives of "Fortune 100" companies
with the objective of developing business relationships for ORBCOMM
Global services.
B. Act as an executive sales contact for selected ORBCOMM USA National
Accounts. Provide advice and counsel to ORBCOMM Marketing Executives
to build and extend ORBCOMM and Business Partner relationships.
C. Maintain current understanding and act as the executive contact for
certain application developers, manufacturers, and related vendors.
This will include, but not be limited to, companies such as
International Business Machines Corporation, Torrey Science
Corporation and Dolphin Software Inc.
D. As requested, provide advice and counsel to ORBCOMM Global management
as it develops and improves business processes - with a particular
focus on sales and pricing policies and practices.
E. Establish strategic relationships with key partners on a global basis.
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EXHIBIT B
COMPLIANCE WITH INTERNATIONAL TRAFFIC IN ARMS REGULATIONS
Although this Agreement is not intended to be a technical assistance
agreement as defined in Part 120.20 of the International Traffic in Arms
Regulations, to the extent any part of this Agreement is deemed to be a
technical assistance agreement, the following provisions of Part 124.8, as
amended from time to time, shall apply with respect to that part of this
Agreement:
A. The applicable part of this Agreement shall not enter into
force, and shall not be amended or extended, without the prior
written approval of the Department of State of the U.S.
Government.
B. The applicable part of this Agreement and any information
furnished hereunder is subject to all United States laws and
regulations relating to exports and to all administrative acts
of the U.S. Government pursuant to such laws and regulations.
C. The parties to this Agreement agree that the obligations
contained in this Agreement shall not affect the performance
of any obligations created by prior contracts or subcontracts
that the parties may have individually or collectively with
the U.S. Government.
D. No liability will be incurred by or attributed to the U.S.
Government in connection with any possible infringement of
privately owned patent or proprietary rights, either domestic
or foreign, by reason of the U.S. Government's approval of
this Agreement.
E. Any technical data or service exported from the United States
in furtherance of this Agreement and any article that may
be produced or manufactured from such technical data or
service may not be transferred to a person in a third country
or to a national of a third country unless the prior written
approval of the Department of State has been obtained.
F. All provisions in this Agreement that refer to the U.S.
Government and the Department of State will remain binding on
the parties after the termination of this Agreement.
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EXHIBIT C
COMPLIANCE WITH THE PROHIBITED FOREIGN TRADE PRACTICES ACT
A. The Consultant agrees that, in connection with this Agreement,
it will not, directly or indirectly, give, offer or promise,
or authorize or tolerate to be given, offered or promised,
anything of value to an official or employee of a government
or of any subdivision thereof with the intent to (i) influence
any official act or decision of such official or employee, or
(ii) induce such official or employee to use his or her
influence to affect or influence any act or decision of a
government or of any subdivision thereof, to assist ORBCOMM
Global in obtaining or retaining business, or in directing
business to any person.
B. The Consultant agrees that, in connection with this Agreement,
it will not, directly or indirectly, give, offer or promise,
or authorize or tolerate to be given, offered or promised,
anything of value to any person, knowing or having reason to
know that such thing of value is to be given, offered or
promised to an official or employee of a government or of any
subdivision thereof with the intent to (i) influence any
official act or decision of such official act or decision of
such official or employee, or (ii) induce such official or
employee to use his or her influence to affect or influence
any act or decision of a government or of any subdivision
thereof, to assist ORBCOMM Global in obtaining or retaining
business, or in directing business to any person.
C. The Consultant agrees that, in rendering the Services and in
carrying out its other duties and responsibilities under this
Agreement, Consultant will neither undertake, nor cause nor
permit to be undertaken, any activity that either (i) is
illegal under any laws, decrees, rules or regulations in
effect in any country in the Territory, or (ii) would have the
effect of causing ORBCOMM Global to be in violation of any
laws, decrees, rules or regulations in effect in the United
States or in any country whose laws are applicable to the
performance of this Agreement (the "Territory").
D. The Consultant hereby covenants that neither the Consultant,
nor any employee, representative or agent of the Consultant,
is an official or employee of the government of any country of
the Territory or any subdivision thereof. The Consultant
further agrees to notify ORBCOMM Global immediately in the
event that this covenant ceases to be true.
E. The Consultant agrees to notify ORBCOMM Global immediately of
any extorsive solicitation, demand or other request for
anything of value, by or on behalf of any official or employee
of the government of any country of the Territory or of any
subdivision thereof, relating to the subject matter of this
Agreement.
F. If the Consultant breaches any of the covenants set forth in
A, B, C or E above, (i) this Agreement shall become void, (ii)
ORBCOMM Global shall have a cause of action against the
Consultant for, among other things, the amount of any monetary
payment or thing of value given by the Consultant in breach of
any of the above-mentioned covenants and (iii) all obligation
by ORBCOMM Global to compensate the Consultant pursuant to
Article III of this Agreement shall cease and terminate
immediately.