PRER14A
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE
SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
Filed by the
Registrant þ
Filed by a Party other than the
Registrant o
Check the appropriate box:
|
|
|
þ Preliminary
Proxy Statement
|
|
|
o Confidential,
for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
|
|
|
o Definitive
Proxy Statement
|
|
|
o Definitive
Additional Materials
|
|
|
o Soliciting
Material Pursuant to
Section 240.14a-12
|
|
|
ORBCOMM Inc.
(Name of Registrant as Specified In
Its Charter)
(Name of Person(s) Filing Proxy
Statement, if Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box):
|
|
þ
|
No fee required.
|
|
o
|
Fee computed on table below per Exchange Act
Rules 14a-6(i)(4)
and 0-11.
|
|
|
|
|
(1)
|
Title of each class of securities to which transaction applies:
|
|
|
|
|
(2)
|
Aggregate number of securities to which transaction applies:
|
|
|
|
|
(3)
|
Per unit price or other underlying value of transaction computed
pursuant to Exchange Act
Rule 0-11
(set forth the amount on which the filing fee is calculated and
state how it was determined):
|
|
|
|
|
(4)
|
Proposed maximum aggregate value of transaction:
|
|
|
o |
Fee paid previously with preliminary materials:
|
|
|
o |
Check box if any part of the fee is offset as provided by
Exchange Act
Rule 0-11(a)(2)
and identify the
|
filing for which the offsetting fee was paid previously.
Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
|
|
|
|
(1)
|
Amount Previously Paid:
|
|
|
|
|
(2)
|
Form, Schedule or Registration Statement No.:
|
PRELIMINARY
PROXY MATERIALS SUBJECT TO COMPLETION
April
[ ], 2009
Dear Shareholder:
You are cordially invited to attend our 2009 Annual Meeting of
Shareholders.
We will hold the Annual Meeting at [ ], on
[ ], May [ ], 2009, at
10:00 a.m. local time. At the meeting we will discuss and
act on the matters described in the Proxy Statement. At this
years meeting, you will have an opportunity to vote on the
election of two directors and ratify the selection of
Deloitte & Touche LLP as our independent registered
public accounting firm, as well as to transact such other
business as may properly come before the meeting, including
consideration of any shareholder proposals. Shareholders will
then have an opportunity to comment on or to inquire about the
affairs of the Company that may be of interest to shareholders
generally.
Your vote is extremely important, no matter how many or how
few shares you own. Whether or not you plan to attend the
meeting, please vote via the Internet, by telephone or by
returning your proxy card as soon as possible.
You may receive solicitation materials from a dissident
shareholder, John Levinson, seeking your proxy to vote for
Steven G. Chrust and Michael Miron to become members of the
Board of Directors. THE BOARD OF DIRECTORS URGES YOU NOT TO SIGN
OR RETURN ANY PROXY CARD SENT TO YOU BY MR. LEVINSON OR A GROUP
CALLING ITSELF THE COMMITTEE TO REALIZE VALUE FOR
ORBCOMM. THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE
ELECTION OF EACH OF THE BOARDS NOMINEES ON THE ENCLOSED
WHITE PROXY CARD AND AGAINST THE SHAREHOLDER
PROPOSAL REQUESTING US TO DECLASSIFY THE BOARD OF DIRECTORS.
Admission tickets are printed on the outside back cover of this
Notice of Annual Meeting and Proxy Statement. To enter the
meeting, you will need an admission ticket or other proof that
you are a shareholder. If you hold your shares through a broker
or nominee, you will need to bring a copy of a brokerage
statement showing your ownership as of the April 2, 2009
record date.
We are providing you the Proxy Statement for our 2009 Annual
Meeting of Shareholders and our 2008 Annual Report on
Form 10-K.
You may also access these materials via the Internet at
[www.orbcomm.com]. I hope you find them interesting and useful
in understanding your company.
Sincerely yours,
Jerome B. Eisenberg
Chairman of the Board
PRELIMINARY
PROXY MATERIALS SUBJECT TO COMPLETION
ORBCOMM
Inc.
2115
Linwood Avenue, Suite 100
Fort Lee, New Jersey 07024
Notice of 2009 Annual Meeting
of Shareholders
To the Shareholders of ORBCOMM Inc.:
The 2009 Annual Meeting of Shareholders of ORBCOMM Inc. will be
held at [ ], on [ ],
May [ ], 2009, at 10:00 a.m., local
time, for the following purposes:
(a) to elect two members to our board of directors with
terms expiring at the Annual Meeting in 2012;
(b) to ratify the appointment by the Audit Committee of our
board of directors of Deloitte & Touche LLP as our
independent registered public accounting firm for fiscal year
2009;
(c) to vote on a shareholder proposal requesting us to
declassify the board of directors; and
(d) to transact such other business as may properly come
before the meeting or any adjournments or postponements thereof.
Only shareholders of record at the close of business on
April 2, 2009 will be entitled to notice of, and to vote
at, the 2009 Annual Meeting and any postponements, adjournments
or delays thereof. A list of such shareholders will be available
for inspection by any shareholder at the 2009 Annual Meeting and
at the offices of the Company at 2115 Linwood Avenue,
Suite 100, Fort Lee, New Jersey 07024, for at least
ten (10) days prior to the 2009 Annual Meeting.
Shareholders are requested to submit a proxy for voting at the
2009 Annual Meeting over the Internet, by telephone or by
completing, signing, dating and returning a WHITE proxy card in
the enclosed postage-paid envelope as promptly as possible.
Submitting your vote via the Internet, by telephone or by
returning a proxy card will not affect your right to vote in
person should you decide to attend the 2009 Annual Meeting.
By order of the Board of Directors,
Christian G. Le Brun
Secretary
April [ ], 2009
YOUR VOTE
IS EXTREMELY IMPORTANT THIS YEAR IN LIGHT OF THE PROXY CONTEST
BEING CONDUCTED BY JOHN LEVINSON
Whether or not you plan to attend the meeting, and whatever the
number of shares you own, please complete, sign, date and
promptly return the enclosed WHITE proxy card. Please use the
accompanying envelope, which requires no postage if mailed in
the United States. If you own shares in street name
through a bank, broker or other nominee, you may vote your
shares by telephone or Internet by following the instructions on
the proxy card. Please note, however, that if you wish to vote
at the meeting and your shares are held of record by a broker,
bank or other nominee, you must obtain a legal proxy
issued in your name from that record holder.
THE BOARD URGES YOU NOT TO SIGN ANY PROXY CARDS SENT TO YOU
BY MR. LEVINSON OR A GROUP CALLING ITSELF THE COMMITTEE TO
REALIZE VALUE FOR ORBCOMM. IF YOU HAVE PREVIOUSLY SIGNED A
PROXY CARD SENT TO YOU BY MR. LEVINSON, YOU CAN REVOKE IT BY
SIGNING, DATING AND MAILING THE ENCLOSED WHITE PROXY CARD IN THE
ENVELOPE PROVIDED.
If you have any questions or need assistance in voting your
shares of ORBCOMMs common stock, please call
Morrow & Co., LLC, the firm assisting us in the
solicitation, at
(800) 607-0088.
ORBCOMM
Inc.
Proxy
Statement for the 2009 Annual Meeting
INDEX
|
|
|
|
|
|
|
Page
|
|
|
|
|
1
|
|
|
|
|
5
|
|
|
|
|
8
|
|
|
|
|
11
|
|
|
|
|
12
|
|
|
|
|
13
|
|
|
|
|
15
|
|
|
|
|
23
|
|
|
|
|
24
|
|
|
|
|
33
|
|
|
|
|
34
|
|
|
|
|
43
|
|
|
|
|
50
|
|
|
|
|
51
|
|
|
|
|
53
|
|
|
|
|
53
|
|
|
|
|
53
|
|
|
|
|
53
|
|
|
|
|
53
|
|
|
|
|
54
|
|
|
|
|
A-1
|
|
|
|
|
|
|
i
PRELIMINARY
PROXY MATERIALS SUBJECT TO COMPLETION
ORBCOMM
Inc.
Proxy Statement
2009 ANNUAL MEETING
The enclosed proxy is solicited by the board of directors of
ORBCOMM Inc. for use in voting at the 2009 Annual Meeting of
Shareholders of ORBCOMM Inc. to be held on May [ ],
2009, and any postponements, adjournments or delays thereof (the
Annual Meeting or the 2009 Annual
Meeting), for the purposes set forth in the accompanying
Notice of 2009 Annual Meeting of Shareholders. This proxy
statement and the proxy are first being sent to shareholders and
being made available on the Internet ([www.orbcomm.com]) on or
about April [ ], 2009. We will refer to our
company in this proxy statement as we,
us, the Company or ORBCOMM.
GENERAL
INFORMATION ABOUT THIS PROXY STATEMENT AND THE ANNUAL
MEETING
What am I
Voting On at the Annual Meeting?
You will be voting on the following:
|
|
|
|
|
the election of two members of our board of directors;
|
|
|
|
the ratification of the appointment of Deloitte &
Touche LLP (D&T) as our independent registered public
accounting firm for our fiscal year ending December 31,
2009; and
|
|
|
|
a shareholder proposal requesting us to declassify the board of
directors.
|
Who is
Entitled to Vote at the Annual Meeting?
Only holders of record of the Companys common stock at the
close of business on April 2, 2009, the record date for the
meeting, may vote at the Annual Meeting. Each shareholder is
entitled to one vote for each share of our common stock held on
the record date. There is no cumulative voting. On April 2,
2009, the record date for the Annual Meeting, there were
42,396,031 shares of our common stock outstanding and
entitled to vote.
Who may
Attend the Annual Meeting?
All shareholders as of the record date, or individuals holding
their duly appointed proxies, may attend the Annual Meeting.
Please note that if you hold your shares through a broker, bank
or other nominee in street name, you will need to
provide a copy of a brokerage statement reflecting your stock
ownership as of the record date to be admitted to the Annual
Meeting. If you want directions to the Annual Meeting, they can
be obtained by contacting Fran Lippe at
(703) 433-6310.
How Do I
Vote My Shares?
Whether or not you plan to attend the Annual Meeting, we urge
you to vote your shares right away. Voting now will not affect
your right to attend or your ability to vote at the Annual
Meeting.
If you are a registered shareholder (that is, your shares are
registered directly in your name through our stock transfer
agent, BNY Mellon Investor Services, or you have stock
certificates), you may vote:
|
|
|
|
|
By mail. Complete and mail the enclosed WHITE
proxy card in the enclosed postage prepaid envelope. Your proxy
will be voted in accordance with your instructions. If you sign
the proxy card but do not specify how you want your shares
voted, they will be voted as recommended by our board of
directors.
|
|
|
|
|
|
By Internet or telephone. Registered
shareholders may vote on the Internet at
www.proxyvoting.com/ORBC
by following the instructions on your screen, or by telephone by
dialing
(888) 698-8082.
Please have your WHITE proxy card ready when voting by Internet
or telephone.
|
|
|
|
|
|
In person at the meeting. If you attend the
meeting you may deliver your completed WHITE proxy card in
person or you may vote by completing a ballot, which will be
available at the meeting.
|
If your shares are held in street name (held in the
name of a brokerage firm, bank, broker-dealer or other similar
organization or nominee), you must provide the brokerage firm,
bank, broker-dealer or other similar organization or nominee
with instructions on how to vote your shares and can do so as
follows:
|
|
|
|
|
By mail. You will receive instructions from
your broker or other nominee explaining how to vote your shares.
|
|
|
|
|
|
By Internet or telephone. Street holders may
vote on the internet at www.proxyvote.com and following
the instructions on your screen, or by telephone by dialing
(800) 454-8683.
Please have your WHITE proxy card ready when voting by Internet
or telephone.
|
|
|
|
|
|
In person at the meeting. Contact the broker
or other nominee who holds your shares to obtain a
legal proxy from the broker or other nominee and
bring it with you to the meeting. You will not be able to vote
at the meeting unless you have a legal proxy from your broker.
You will also need to sign a ballot in order to have your vote
counted.
|
If you hold your shares of common stock in more than one
account, you will receive a proxy card for each account. To
ensure that all of your shares are voted, please sign, date and
return the proxy card for each account. You should vote all of
your shares of common stock.
How Will
My Proxy Be Voted?
If you use the telephone or Internet voting procedures or duly
complete, sign and return a proxy card to authorize the named
proxies to vote your shares, your shares will be voted as
specified. If your proxy card is signed but does not contain
specific instructions, your shares will be voted as recommended
by our board of directors: FOR the election of the
nominees for directors set forth herein, FOR
ratification of the appointment of the independent registered
public accounting firm and AGAINST the shareholder
proposal requesting us to declassify the board of directors. In
addition, if other matters come before the Annual Meeting, the
persons named as proxies in the proxy card will vote in
accordance with their best judgment with respect to such matters.
Even if you plan on attending the Annual Meeting, we urge you to
vote now by giving us your proxy. This will ensure that your
vote is represented at the Annual Meeting. If you do attend the
Annual Meeting, you can change your vote at that time, if you
then desire to do so.
If My
Shares Are Held in Street Name, How Will My Broker
Vote?
If your brokerage firm, bank, broker-dealer or other similar
organization is the holder of record of your shares (i.e., your
shares are held in street name), you will receive
voting instructions from the holder of record. You must follow
these instructions in order for your shares to be voted. Your
broker is required to vote those shares in accordance with your
instructions. Because of the contested nature of the proposals,
if you do not give instructions to your broker, your broker may
not be able to vote your shares with respect to the election of
directors (Proposal 1) or the shareholder proposal
requesting us to declassify the board (Proposal 3). We
urge you to instruct your broker or other nominee how to vote
your shares by following those instructions.
2
May I
Revoke My Proxy?
For shareholders of record, whether you vote via the Internet,
by telephone or by mail, you may revoke your proxy at any time
before it is voted by:
|
|
|
|
|
delivering a written notice of revocation to the Secretary of
the Company so long as it is received prior to the Annual
Meeting;
|
|
|
|
casting a later vote using the telephone or Internet voting
procedures;
|
|
|
|
submitting a properly signed proxy card with a later date so
long as it is received prior to the Annual Meeting; or
|
|
|
|
voting in person at the Annual Meeting.
|
The board of directors strongly urges you to revoke any other
proxy card or voting instruction that you have provided to
Mr. Levinson. Even if you have previously completed a proxy
card sent by Mr. Levinson, you have every right to change
your vote. You may revoke that proxy and vote as recommended by
your board of directors by either (i) signing, dating and
returning the enclosed WHITE proxy card in the postage-paid
envelope provided or (ii) voting by telephone or Internet
pursuant to the instructions on the WHITE proxy card.
Will My
Vote be Confidential?
It is our policy to keep confidential all proxy cards, ballots
and voting tabulations that identify individual shareholders,
except as may be necessary to meet any applicable legal
requirements and, in the case of any contested proxy
solicitation, as may be necessary to permit proper parties to
verify the propriety of proxies presented by any person and the
results of the voting. The independent inspector of election and
any employees involved in processing proxy instructions and
cards or ballots and tabulating the vote are required to comply
with this policy of confidentiality.
How Many
Votes are Needed to Elect Directors, Ratify the Appointment of
Our Independent Registered Public Accounting Firm and Approve
the Shareholder Proposal Requesting Us to Declassify the
Board of Directors?
Election of Directors. Directors are elected
by a plurality of votes cast. This means that the two nominees
for election as directors who receive the greatest number of
votes cast by the holders of our common stock entitled to vote
at the meeting, a quorum being present, will become directors.
Selection of our Independent Registered Public Accounting
Firm and Shareholder Proposal. An affirmative
vote of the holders of a majority of the voting power of our
common stock present in person or represented by proxy and
entitled to vote on the matter, a quorum being present, is
necessary to ratify the appointment of D&T as our
independent registered public accounting firm and to approve the
shareholder proposal requesting us to declassify the board of
directors.
What
Constitutes a Quorum for the Meeting?
The presence in person or by proxy of a majority of the shares
of our common stock outstanding on the record date is required
for a quorum. As of April 2, 2009, there were 42,396,031
outstanding shares of our common stock.
How are
Votes Counted?
Under Delaware law and our Restated Certificate of Incorporation
and By-Laws, all votes entitled to be cast by shareholders
present in person or represented by proxy at the meeting and
entitled to vote on the subject matter, whether those
shareholders vote for, against or
abstain from voting, will be counted for purposes of determining
the minimum number of affirmative votes required for ratifying
the appointment of D&T as our independent registered public
accounting firm and approving the shareholder proposal
requesting
3
us to declassify the board of directors. The shares of a
shareholder who abstains from voting on a matter or whose shares
are not voted by reason of a broker non-vote on a matter will be
counted for purposes of determining whether a quorum is present
at the meeting. An abstention from voting on a matter by a
shareholder present in person or represented by proxy at the
meeting has no effect in the election of directors, but has the
same legal effect as a vote against ratifying the
appointment of D&T as our independent registered public
accounting firm and against approving the
shareholder proposal requesting us to declassify the board of
directors. A broker non-vote on a matter is not deemed to be
present or represented by proxy for purposes of determining
whether shareholder approval of the matter is obtained and has
no effect in the election of directors, on ratifying the
appointment of D&T as our independent registered public
accounting firm or on approving the shareholder proposal
requesting us to declassify the board of directors.
Important
Notice for Regarding the Availability of Proxy Materials for the
Shareholder Meeting to be Held on May [ ],
2009
The proxy statement and annual report to stockholders are
available at [insert website address].
If You
Have Any Questions
If you have any questions, or need assistance voting your
shares, please contact the firm assisting us in the solicitation
of proxies:
Morrow & Co., LLC
|
|
Shareholders Call Toll Free:
(800) 607-0088
|
Banks and
Brokers Call Collect:
(203) 658-9400
|
BACKGROUND
OF THE SOLICITATION
In the fall of 2008, the Company received communications from
Redwood Capital, an investment banking firm, representing
certain shareholders of the Company. Redwood Capital and these
shareholders, Messrs. Chrust and Miron, requested a meeting
with the independent members of the board of directors.
On December 8, 2008, a meeting between two of the
Companys independent directors, one of which is a member
of our Nominating and Corporate Governance Committee, Redwood
Capital and Messrs. Chrust and Miron took place. At the
meeting, Redwood Capital and Messrs. Chrust and Miron
suggested changes in management and in the strategic focus of
the Company, and that the Company pursue a going private
transaction.
In late January 2009, the Company notified Redwood Capital that,
after careful review, the board of directors had determined that
it would not pursue the actions proposed by Redwood Capital and
Messrs. Chrust and Miron at the December
8th
meeting other than several strategic initiatives that the board
of directors and the Company were already pursuing. In
particular, the Company advised Redwood Capital that the Board
was actively engaged with management and was open to considering
new ideas to increase growth, but that the conditions were not
favorable for a going private transaction in the current
environment and not in the best interest of our shareholders.
On January 30, 2009, the Company received communications
from John and Ellen Levinson (the Levinsons)
regarding their intent to nominate Messrs. Chrust and Miron
(the Levinson Nominees) to the board of directors
and submit a shareholder proposal requesting us to declassify
the Board (Declassification Proposal). The
Declassification Proposal is a non-binding advisory proposal
that asks the Board to take all steps necessary to eliminate the
classification of the board of directors and to elect all
directors annually. You may receive solicitation materials from
Mr. Levinson seeking your proxy to vote for the Levinson
Nominees and the Declassification Proposal. The board of
directors urges you not to sign or return any proxy card sent to
you by Mr. Levinson.
The Board of Directors has determined to recommend that
shareholders vote against the Levinson Nominees (and in favor of
the Boards nominees) because, among other reasons, the
Board believes that the strategy put forth by the Levinson
Nominees is ill-informed and would not result in an increase in
shareholder value. The Board believes that Mr. Miron, whom
the Levinson Nominees would seek to install as the
4
Companys chief executive officer, lacks meaningful
knowledge of the Company and its industry, in addition to
lacking meaningful executive experience. The Board also does not
believe that a change in the Companys business strategy or
a $25 million capital raise (both of which are advocated by
the Levinson Nominees) are in the best interests of shareholders.
The Levinsons have provided notice that they intend to nominate
the Levinson Nominees for election as directors of the Company
at the Annual Meeting. As a result, you also may receive proxy
solicitation materials from Mr. Levinson seeking your proxy
to vote for the Levinson Nominees. To ensure shareholders have
the Companys latest proxy information and materials to
vote, the board of directors may conduct additional mailings
prior to the date of the Annual Meeting, each of which will
include a WHITE proxy card, regardless of whether you have
previously voted. Only your latest dated proxy card will be
counted.
THE BOARD OF DIRECTORS URGES YOU NOT TO SIGN OR RETURN ANY OTHER
PROXY CARD THAT MAY BE SENT TO YOU BY MR. LEVINSON OR A GROUP
CALLING ITSELF THE COMMITTEE TO REALIZE VALUE FOR
ORBCOMM.
ELECTION
OF DIRECTORS (PROPOSAL 1)
Our Restated Certificate of Incorporation provides that the
board of directors will consist of three classes of directors,
as nearly equal in number as possible, serving staggered
three-year terms. One class of directors is elected each year
with terms extending to the third annual meeting after such
election.
The terms of the two directors in Class III expire at the
2009 Annual Meeting. The board has designated Jerome B.
Eisenberg and Marco Fuchs, upon the recommendation of the
Nominating and Corporate Governance Committee, as nominees for
election as directors at the 2009 Annual Meeting with terms
expiring at the 2012 annual meeting.
Proxies properly submitted will be voted at the meeting, unless
authority to do so is withheld, for the election of the two
nominees specified in Class III Nominees
for Election as Directors with Terms Expiring in 2012
below. If for any reason any of those nominees is not a
candidate when the election occurs (which is not expected),
proxies and shares properly authorized to be voted will be voted
at the meeting for the election of a substitute nominee as
selected by the board of directors, and the Company will provide
shareholders with the required biographical information of such
substitute nominee in advance of the meeting.
A plurality of the votes cast in person or by proxy at the
Annual Meeting and entitled to vote is required to elect
directors. Under the rules of the New York Stock Exchange,
brokers who hold shares in street name have the
authority to vote on some matters when they do not receive
instructions from beneficial owners. Because of the election
contest, brokers that do not receive instructions are prohibited
from voting on the election of directors. Accordingly, a broker
non-vote will not be counted as a vote to elect directors.
This
years vote at the Annual Meeting is extremely important
for the future of ORBCOMM.
In addition to voting on the nominees being recommended by your
current board of directors, you may be solicited for support of
a dissident slate of director candidates chosen by John
Levinson. ORBCOMM strongly urges you not to support his efforts
and, instead, to vote for the board of directors slate of
directors on the Companys WHITE proxy card.
INFORMATION
AS TO NOMINEES FOR DIRECTORS AND CONTINUING DIRECTORS
For each director nominee and each continuing director, we have
stated the nominees or continuing directors name,
age and principal occupation; his position, if any, with the
Company; his period of service as a director of the Company; his
business experience for at least the past five years; and other
directorships held. Each nominee for director has consented to
being named in this proxy statement and to serve as a director
if elected.
Class III Nominees For Election As Directors
With Terms Expiring at the 2012 Annual Meeting
5
|
|
|
Jerome B.
Eisenberg |
Director Since February 2004 |
Age 69 |
Mr. Eisenberg has been our non-executive Chairman of the
Board since March 2008. He served as our Chairman and Chief
Executive Officer from January 2006 to March 2008 and our Chief
Executive Officer and President from December 2004 to January
2006. Mr. Eisenberg has been a member of the board of
directors of ORBCOMM LLC and ORBCOMM Holdings LLC since 2001.
Between 2001 and December 2004, Mr. Eisenberg held a number
of positions with ORBCOMM Inc. and with ORBCOMM LLC, including
Co-Chief Executive Officer of ORBCOMM Inc. Mr. Eisenberg
has worked in the satellite industry since 1993 when he helped
found Satcom International Group plc. From 1987 to 1992, he was
President and CEO of British American Properties, an investment
company funded by European and American investors that acquired
and managed various real estate and industrial facilities in
various parts of the U.S. Prior thereto, Mr. Eisenberg
was a partner in the law firm of Eisenberg, Honig &
Folger; CEO and President of Helenwood Manufacturing Corporation
(presently known as Tennier Industries), a manufacturer of
equipment for the U.S. Department of Defense; and Assistant
Corporate Counsel for the City of New York. Mr. Eisenberg
is the father of Marc Eisenberg, a member of the board of
directors and our Chief Executive Officer.
|
|
|
Marco
Fuchs |
Director Since February 2004 |
Age 46 |
Mr. Fuchs has been a member of the board of directors of
ORBCOMM LLC since 2001 and of ORBCOMM Holdings LLC from 2001 to
February 2004. Mr. Fuchs is currently the Chief Executive
Officer and Chairman of the Managing Board of OHB Technology
A.G. (technology and space), positions he has held since 2000.
From 1995 to 2000, Mr. Fuchs worked at OHB Orbital
Hochtechnologie Bremen-System A.G., first as a Prokurist
(authorized signatory) and then as Managing Director. Prior to
that, he worked as a lawyer from 1992 to 1994 for Jones, Day,
Reavis & Pogue in New York, and from 1994 to 1995 in
Frankfurt am Main.
Class I
Continuing Directors With Terms Expiring at the 2010 Annual
Meeting
|
|
|
Didier
Delepine |
Director Since May 2007 |
Age 61 |
Mr. Delepine is currently Chairman of the Board of Viatel
Ltd., a director of Mercator Partners and a member of the board
of advisors of Ciena, Inc. Mr. Delepine served as President and
Chief Executive Officer of Equant (now Orange Business Services)
(global data networking and managed communications) from 1998 to
2003. From 1995 to 1998, Mr. Delepine served as President
and Chief Executive Officer of Equants network services
division and as Chairman and President of Equants
Integration Services division, Americas. From 1983 to 1995,
Mr. Delepine held a range of senior management positions at
SITA, the global telecommunications and technology organization
supporting the worlds airlines. Mr. Delepine was a
director of Intelsat, Ltd., a global provider of communications
services, from 2003 to 2005 and Eircom Group plc, an Irish
communications company, from 2003 to 2006.
|
|
|
Hans E.
W. Hoffmann |
Director Since November 2006 |
Age 75 |
Mr. Hoffmann currently serves as President of the Bremen
United States Center (international relations) and Vice
President of Bund der Steuerzahler Niedersachsen und Bremen e.v.
(tax policy), positions he has held since 2001.
Mr. Hoffmann was the President and Chief Executive Officer
of ORBCOMM LLC from 2001 to 2003. Prior to joining ORBCOMM LLC,
Mr. Hoffmann served as the President of STN Atlas
Elektronik GmbH, a 5,200 person Germany-based corporation
that manufactures products for the aerospace, navy equipment and
military markets, from 1994 to 1997.
|
|
|
Gary H.
Ritondaro |
Director Since November 2006 |
Age 62 |
Mr. Ritondaro is the Senior Vice President and Chief
Financial Officer of LodgeNet Interactive Corporation (largest
provider of media and connectivity solutions to the hospitality
industry), a position he has held since 2001, and has also
served as Senior Vice President, Finance, Information Systems
and Administration of LodgeNet since July 2002. Prior to joining
LodgeNet, Mr. Ritondaro served as Senior Vice President and
6
Chief Financial Officer for Mail-Well, Inc., an NYSE-listed
manufacturer of envelopes, commercial printing and labels, from
1999 to 2001. From 1996 to 1999, Mr. Ritondaro was Vice
President and Chief Financial Officer for Ferro Corporation, an
NYSE-listed international manufacturer of specialty plastics,
chemicals, colors, industrial coatings and ceramics.
Class II
Continuing Directors With Terms Expiring at the 2011 Annual
Meeting
|
|
|
Marc J.
Eisenberg |
Director Since March 2008 |
Age 42 |
Mr. Eisenberg is our Chief Executive Officer, a position he
has held since March 2008. He served as our Chief Operating
Officer from February 2007 to March 2008. From June 2006 to
February 2007, he was our Chief Marketing Officer and from March
2002 to June 2006, he was our Executive Vice President, Sales
and Marketing. He was a member of the board of directors of
ORBCOMM Holdings LLC from May 2002 until February 2004. Prior to
joining ORBCOMM, from 1999 to 2001, Mr. Eisenberg was a
Senior Vice President of Cablevision Electronics Investments,
where among his duties he was responsible for selling
Cablevision services such as video and internet subscriptions
through its retail channel. From 1984 to 1999, he held various
positions, most recently as the Senior Vice President of Sales
and Operations with the consumer electronics company The Wiz,
where he oversaw sales and operations and was responsible for
over 2,000 employees and $1 billion a year in sales.
Mr. Eisenberg is the son of Jerome B. Eisenberg.
|
|
|
Timothy
Kelleher |
Director Since March 2008 |
Age 46 |
Mr. Kelleher has been a member of our board of directors
since March 2008 and previously served as a member of our board
of directors from December 2005 to June 2007. He is a Managing
Member of PCG Capital Partners Advisors II LLC (investment
management), focusing on providing growth capital to established
companies, and was previously a Managing Director of Pacific
Corporate Group, which he joined in 2002. Prior to joining
Pacific Corporate Group, Mr. Kelleher was a Partner and
Senior Vice President at Desai Capital Management Incorporated
from 1992 to 2002 and held positions at Entrecanales, Inc., L.F.
Rothschild & Co. Incorporated and Arthur
Young & Co.
|
|
|
John
Major |
Director Since April 2007 |
Age 63 |
Mr. Major is President of MTSG (strategic consulting and
investment), which he founded in January 2003. From April 2004
to October 2006, Mr. Major also served as Chief Executive
Officer of Apacheta Corporation, a privately-held mobile,
wireless software company. From August 2000 until January 2003,
Mr. Major was Chairman and Chief Executive Officer of
Novatel Wireless, Inc., a wireless data access solutions
company. Prior to August 2000, he was the founder and Chief
Executive Officer of the Wireless Internet Solutions Group, a
strategic consulting firm. From November 1998 to November 1999,
Mr. Major was Chairman and Chief Executive Officer of
Wireless Knowledge, a joint venture of Qualcomm Incorporated and
Microsoft Corporation. From 1997 until 1998, he served as
President of the Wireless Infrastructure Division of Qualcomm.
Prior to that, for approximately 18 years, he held various
positions at Motorola, Inc., the most recent of which was Senior
Vice President and Chief Technology Officer. Mr. Major is
Chairman of the Board of Broadcom Corporation as well as a
director of Lennox International, Inc. and Littelfuse Inc.
The board of directors recommends that you vote
FOR the election as directors of the two
Class III director nominees described above, which is
presented as Proposal 1.
7
BOARD OF
DIRECTORS AND COMMITTEES
Our business is managed under the direction of the board of
directors. Our board of directors has the authority to appoint
committees to perform certain management and administration
functions. We currently have an Audit Committee, a Compensation
Committee and a Nominating and Corporate Governance Committee,
composed of three members each.
The functions of each of our board committees are described
below. The duties and responsibilities of each committee are set
forth in committee charters that are available on our website at
www.orbcomm.com under the heading Investor Relations
and the subheading Corporate Governance. The
committee charters are also available in print to any
shareholder upon request. The board of directors held six
meetings during fiscal year 2008. All directors attended at
least 75% of all meetings of the board and those committees on
which they served. Directors are expected to attend the Annual
Meeting of Shareholders. All of the directors attended the 2008
Annual Meeting.
The board has reviewed the independence of its members
considering the independence criteria of The NASDAQ Stock
Market, LLC, or NASDAQ, and any other commercial, industrial,
banking, consulting, legal, accounting, charitable and familial
relationships between the directors and the Company. Based on
this review, the board has determined that none of the current
directors, other than Jerome B. Eisenberg (a former executive
officer and current employee of the Company), Marc J. Eisenberg
(an executive officer of the Company) and Marco Fuchs (a senior
executive of OHB Technology A.G., the supplier of the
Companys quick-launch satellite buses and integration and
launch services), has a material relationship with the Company
and each of Didier Delepine, Hans Hoffman, Timothy Kelleher,
John Major and Gary Ritondaro meets the independence
requirements of NASDAQ. With respect to Hans Hoffmann, a former
executive of ORBCOMM LLC, a predecessor company of ours, the
board considered certain consulting payments made by ORBCOMM LLC
to Mr. Hoffmann in connection with its determination that
he met the independence requirements of NASDAQ.
The independent directors meet in executive session without the
presence of any executive officer or member of management at
least twice a year in conjunction with regular meetings of the
board. A director designated by the independent directors will
chair the session. The independent directors generally designate
the chairman of one of the board committees as chair, depending
upon whether the principal items to be considered at the session
are within the scope of the applicable committee.
Audit Committee. The Audit Committee, among
other things:
|
|
|
|
|
reviews and oversees the integrity of our financial statements
and internal controls;
|
|
|
|
reviews the qualifications of and, selects and recommends to the
board of directors the selection of, our independent public
accountants, subject to ratification by our shareholders, and
reviews and approves their fees;
|
|
|
|
reviews and oversees the adequacy of our accounting and
financial reporting processes, including our system of internal
controls and disclosure controls, and recommendations of the
independent accountants with respect to our systems; and
|
|
|
|
reviews and oversees our compliance with legal and regulatory
requirements.
|
Gary Ritondaro, Didier Delepine and Hans Hoffmann currently
serve as members of our Audit Committee. Each member of our
Audit Committee meets the independence and financial literacy
requirements of NASDAQ, the SEC and applicable law. All members
of our Audit Committee are able to read and understand
fundamental financial statements. The board of directors has
determined that Gary Ritondaro is an audit committee
financial expert as defined by the SEC rules.
Mr. Ritondaro serves as chair of our Audit Committee. The
Audit Committee met five times during the 2008 fiscal year.
8
Compensation Committee. The Compensation
Committee, among other things:
|
|
|
|
|
reviews and approves corporate goals and objectives relevant to
the compensation of the Chief Executive Officer, evaluates the
performance of the Chief Executive Officer in light of these
goals and objectives and determines and approves the level of
the Chief Executive Officers compensation based on this
evaluation;
|
|
|
|
determines the base and incentive compensation of other senior
executives, and determines the terms of the employment of senior
executives, including the Chief Executive Officer;
|
|
|
|
reviews, administers, monitors and recommends to the board of
directors all executive compensation plans and programs,
including incentive compensation and equity-based plans; and
|
|
|
|
evaluates and makes recommendations regarding the compensation
of non-employee directors and administration of non-employee
director compensation plans or programs.
|
Hans Hoffmann, Timothy Kelleher and John Major currently serve
as members of our Compensation Committee. Timothy Kelleher
served as Chairman of the Compensation Committee until June 2007
and was reappointed to the Compensation Committee upon his
rejoining the board of directors in March 2008. Each member of
our Compensation Committee meets the independence requirement of
NASDAQ and applicable law. Hans Hoffmann serves as chair of our
Compensation Committee. The Compensation Committee met four
times during the 2008 fiscal year.
For description of the role of our executive officers on
determining or recommending the amount or form of executive or
director compensation, see Compensation Discussion and
Analysis Role of Executives and Others in
Establishing Compensation.
Nominating and Corporate Governance
Committee. The Nominating and Corporate
Governance Committee, among other things:
|
|
|
|
|
reviews and recommends to the board of directors the size and
composition of the board, the qualification and independence of
the directors and the recruitment and selection of individuals
to serve as directors;
|
|
|
|
reviews and recommends to the board of directors the
organization and operation of the board of directors, including
the nature, size and composition of committees of the board, the
designation of committee chairs, the designation of a Chairman
of the Board or similar position, and the distribution of
information to the board and its committees;
|
|
|
|
coordinates an annual self-assessment by the board of its
operations and performance and the operations and performance of
the committees and prepares an assessment of the boards
performance for discussion with the board;
|
|
|
|
in coordination with the Compensation Committee, evaluates the
performance of the Chief Executive Officer in light of corporate
goals and objectives; and
|
|
|
|
oversees our corporate governance policies, practices and
programs.
|
John Major, Didier Delepine and Gary Ritondaro currently serve
as members of our Nominating and Corporate Governance Committee.
Each member of our Nominating and Corporate Governance Committee
meets the independence requirement of NASDAQ and applicable law.
John Major serves as chair of our Nominating and Corporate
Governance Committee. The Nominating and Corporate Governance
Committee met twice during the 2008 fiscal year.
The Nominating and Corporate Governance Committee, the Chairman
of the Board and the Chief Executive Officer or other members of
the board of directors may identify a need to add new members to
the board or to fill a vacancy on the board. In that case, the
committee will initiate a search for qualified director
candidates, seeking input from other directors, and senior
executives and, to the extent it deems appropriate, third party
search firms to identify potential candidates. The committee
will evaluate qualified candidates and then make its
recommendation to the board, for its consideration and approval.
In making its recommendations to the board, the committee will
consider the selection criteria for director candidates set
forth in our Board
9
Membership Criteria (a copy of which is available on our website
at www.orbcomm.com under the heading Investor
Relations and the subheading Corporate
Governance), including the following:
|
|
|
|
|
each director should have high level managerial experience in a
relatively complex organization or be accustomed to dealing with
complex problems.
|
|
|
|
each director should be an individual of the highest character
and integrity, have experience at or demonstrated understanding
of strategy/policy-setting and reputation for working
constructively with others.
|
|
|
|
each director should have sufficient time available to devote to
the affairs of the Company in order to carry out the
responsibilities of a director.
|
|
|
|
each director should be free of any conflict of interest which
would interfere with the proper performance of the
responsibilities of a director.
|
The committee from time to time reviews with the board, our
Board Membership Criteria in the context of current board
composition and the Companys circumstances.
The Nominating and Corporate Governance Committee will consider
director candidates recommended by our shareholders for election
to the board of directors. Shareholders wishing to recommend
director candidates can do so by writing to the Secretary of
ORBCOMM Inc. at 2115 Linwood Avenue, Suite 100,
Fort Lee, New Jersey 07024. Shareholders recommending
candidates for consideration by the committee must provide each
candidates name, biographical data and qualifications. Any
such recommendation should be accompanied by a written statement
from the individual of his or her consent to be named as a
candidate and, if nominated and elected, to serve as a director.
The recommending shareholder must also provide evidence of being
a shareholder of record of our common stock at the time. The
committee will evaluate properly submitted shareholder
recommendations under substantially the same criteria and
substantially the same manner as other potential candidates.
In addition, our By-Laws establish a procedure with regard to
shareholder proposals for the 2010 Annual Meeting, including
nominations of persons for election to the board of directors,
as described below under Shareholder Proposals for Annual
Meeting in 2010.
Compensation Committee Interlocks and Insider
Participation. None of our executive officers
currently serves or served during 2008 as a director or member
of the compensation committee of another entity with an
executive officer who serves on our board of directors or our
Compensation Committee. For description of the members of our
Compensation Committee, see Board of Directors and
Committees Compensation Committee.
Standards of Business Conduct. The board of
directors has adopted a Standards of Business Conduct that is
applicable to all of our directors, officers and employees. Any
material changes made to the Standards of Business Conduct or
any waivers granted to any of our directors and executive
officers will be publicly disclosed in accordance with
applicable NASDAQ and SEC rules. A copy of our Standards of
Business Conduct is available on the Corporate Governance page
of our website at www.orbcomm.com or upon request, without
charge, by contacting our Investor Relations Department by
calling
703-433-6505.
Communications to the Board. Shareholders and
other interested parties may send communications to the board of
directors, an individual director, the non-management directors
as a group, or a specified committee at the following address:
ORBCOMM Inc.
c/o Corporate
Secretary
2115 Linwood Avenue, Suite 100
Fort Lee, NJ 07024
Attn: Board of Directors
The Secretary will receive and process all communications before
forwarding them to the addressee. The Secretary will forward all
communications unless the Secretary determines that a
communication is a business solicitation or advertisement, or
requests general information about us.
10
DIRECTOR
COMPENSATION
The following independent directors: Didier Delepine,
Hans Hoffmann, John Major and Gary Ritondaro, each receive an
annual retainer of $35,000. In addition to the annual retainer,
each of these directors receives $3,000 annually for each
committee on which they serve or $10,000 annually for service as
the chair of a committee. Each of these directors receives an
attendance fee of $1,000 for each committee meeting. None of
Messrs. Fuchs, Kelleher, M. Eisenberg and J. Eisenberg
received any retainer or committee fees for their service on the
board of directors and committees (with respect to
Mr. Kelleher) in 2008. All directors are reimbursed for
reasonable expenses incurred to attend meetings of the board of
directors. On February 29, 2008, we granted an award of
5,263 time-based restricted stock units, or RSUs, with a value
of $30,000 (based on the closing price of our common stock of
$5.70 per share on February 29, 2008) to each of
Messrs. Delepine, Hoffmann, Major and Ritondaro. On
January 1, 2009, these time-based awards vested. On
February 2, 2009, we granted an award of 19,355 time-based
RSUs with a value of $30,000 (based on the closing price of our
common stock of $1.55 per share on February 2,
2009) to each of Messrs. Delepine, Hoffmann, Major and
Ritondaro. These RSUs will vest on January 1, 2010.
Under the terms of our directors deferred compensation
arrangements, a non-employee director may elect to defer all or
part of the cash payment of director retainer fees until such
time as shall be specified, with interest on deferred amounts
accruing quarterly at 120% of the Federal long-term rate set
each month by the U.S. Treasury Department. Each member of
the Audit Committee also has the alternative each year to
determine whether to defer all or any portion of his or her cash
retainer fees for Audit Committee service by electing to receive
shares or restricted shares of our common stock valued at the
closing price of our common stock on NASDAQ on the date each
retainer payment would otherwise be made in cash.
Non-Employee
Director Compensation for Fiscal Year 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees Earned or Paid
|
|
|
|
|
|
All Other
|
|
|
|
|
Name
|
|
in Cash
|
|
|
Stock Awards(1)
|
|
|
Compensation
|
|
|
Total
|
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
Didier Delepine
|
|
|
47,992
|
|
|
|
29,902
|
|
|
|
|
|
|
|
77,894
|
|
Hans Hoffmann
|
|
|
58,946
|
|
|
|
29,902
|
|
|
|
|
|
|
|
88,848
|
|
John Major
|
|
|
54,946
|
|
|
|
29,902
|
|
|
|
|
|
|
|
84,848
|
|
Gary Ritondaro
|
|
|
54,946
|
|
|
|
29,902
|
|
|
|
|
|
|
|
84,848
|
|
Marco Fuchs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Timothy Kelleher
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The amount set forth in the Stock Awards column
represents the compensation costs for financial statement
purposes recognized in 2008 relating to time-based RSU awards
that were granted in 2008 in accordance with Statement of
Financial Accounting Standards No. 123 (Revised 2004),
Share-Based Payment. For a discussion of the assumptions used to
calculate the value of the amounts in the Stock
Awards column see Note 5 in our consolidated
financial statements included in our Annual Report on
Form 10-K
for the year ended December 31, 2008. |
11
AUDIT
COMMITTEE REPORT
The Audit Committee assists the board of directors in overseeing
the accounting and financial reporting processes of the Company,
the audits of the financial statements, compliance with legal
and regulatory requirements and the qualifications, independence
and performance of its independent registered public accounting
firm.
Our roles and responsibilities are set forth in a written
charter adopted by the board, which is available on the
Companys website at www.orbcomm.com under the heading
Investor Relations and the subheading
Corporate Governance. We review and reassess the
charter annually, and more frequently as necessary, to address
any changes in NASDAQ corporate governance and SEC rules
regarding audit committees, and recommend any changes to the
board of directors for approval.
Management is responsible for the preparation, presentation and
integrity of the Companys financial statements. Management
is also responsible for establishing and maintaining adequate
internal control over financial reporting and evaluating the
effectiveness of the Companys internal control over
financial reporting. The independent registered public
accounting firm, Deloitte & Touche LLP (D&T), is
responsible for performing an independent audit of the
Companys financial statements and expressing an opinion on
the conformity of those financial statements with accounting
principles generally accepted in the United States. D&T is
also responsible for expressing an opinion on the effectiveness
of the Companys internal control over financial reporting.
We are responsible for overseeing the Companys accounting
and financial reporting processes. In fulfilling our
responsibilities for the accounting and financial processes for
fiscal year 2008, we:
|
|
|
|
|
reviewed and discussed the audited financial statements for the
fiscal year ended December 31, 2008 with management and
D&T;
|
|
|
|
reviewed and discussed managements assessment of the
effectiveness of the Companys internal control over
financial reporting pursuant to Section 404 of the
Sarbanes-Oxley Act of 2002 for the fiscal year ended
December 31, 2008 and D&Ts audit report on the
effectiveness of internal control over financial reporting;
|
|
|
|
discussed with D&T the matters required to be discussed by
the Statement on Auditing Standards No. 61, as amended, as
adopted by the Public Company Accounting Oversight Board in
Rule 3200T; and
|
|
|
|
received the written disclosures and correspondence from
D&T required by applicable requirements of the Public
Company Accounting Oversight Board regarding D&Ts
communications with the Audit Committee concerning independence.
We also discussed with D&T its independence.
|
For information on fees paid to D&T for each of the last
two fiscal years, see Proposal to Ratify the Appointment
of Independent Registered Public Accounting Firm
(Proposal 2).
We reviewed and approved all audit and audit-related fees and
services. The Company is not using D&T for non-audit
related services. In fulfilling our responsibilities, we met
with D&T, with and without management present, to discuss
the results of their audit and the overall quality of the
Companys financial reporting and internal control
environment. We considered the status of pending litigation,
taxation matters and other areas of oversight relating to the
financial reporting and audit process that we determined
appropriate.
Based on our review of the audited financial statements and
discussions with, and the reports of, management and D&T,
we recommended to the board of directors that the audited
financial statements be included in the Companys Annual
Report on
Form 10-K
for the fiscal year ended December 31, 2008 for filing with
the SEC.
The Audit Committee has appointed D&T as the independent
registered public accounting firm of the Company for the fiscal
year ending December 31, 2009, subject to the ratification
of shareholders.
Audit Committee
Gary Ritondaro, Chairman
Didier Delepine
Hans E. W. Hoffmann
12
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table shows the beneficial ownership, reported to
us as of [April 2], 2009, of our common stock, including shares
as to which a right to acquire ownership within 60 days
exists (for example, through the exercise of stock options) of
each director, each nominee for director, each named executive
officer, of such persons and other executive officers as a group
and of beneficial owners of 5% or more of our common stock. The
business address of the named executive officers and directors
is
c/o ORBCOMM
Inc., 2115 Linwood Avenue, Suite 100, Fort Lee,
NJ 07024. As of April 2, 2009, there were 42,396,031
outstanding shares of our common stock.
|
|
|
|
|
|
|
|
|
|
|
Shares of
|
|
|
|
|
|
|
Common Stock
|
|
|
Percentage of Total
|
|
Name of Beneficial Owner
|
|
Owned(1)
|
|
|
Common Stock Held
|
|
|
Greater than 5% Stockholders
|
|
|
|
|
|
|
|
|
PCG Satellite Investments LLC(2)
|
|
|
4,116,383
|
|
|
|
9.7
|
%
|
Winslow Management Company, LLC(3)
|
|
|
2,405,219
|
|
|
|
5.7
|
%
|
Stephens Investment Management, LLC(4)
|
|
|
2,626,985
|
|
|
|
6.2
|
%
|
OHB Technology A.G.(5)
|
|
|
2,229,103
|
|
|
|
5.3
|
%
|
Royce & Associates, LLC(6)
|
|
|
2,172,101
|
|
|
|
5.1
|
%
|
Named Executive Officers and Directors
|
|
|
|
|
|
|
|
|
Jerome B. Eisenberg(11)
|
|
|
1,392,267
|
|
|
|
3.3
|
%
|
Marc Eisenberg(7)
|
|
|
642,158
|
|
|
|
1.5
|
%
|
Robert G. Costantini(8)
|
|
|
222,797
|
|
|
|
*
|
|
John J. Stolte, Jr.(9)
|
|
|
114,822
|
|
|
|
*
|
|
Christian G. Le Brun(10)
|
|
|
105,092
|
|
|
|
*
|
|
Didier Delepine
|
|
|
7,113
|
|
|
|
*
|
|
Marco Fuchs(5)
|
|
|
2,229,103
|
|
|
|
5.3
|
%
|
Hans E. W. Hoffmann
|
|
|
63,667
|
|
|
|
*
|
|
Timothy Kelleher(12)
|
|
|
4,116,383
|
|
|
|
9.7
|
%
|
John Major
|
|
|
7,113
|
|
|
|
*
|
|
Gary H. Ritondaro
|
|
|
7,113
|
|
|
|
*
|
|
All executive officers and directors as a group (11 persons)
|
|
|
8,907,628
|
|
|
|
20.4
|
%
|
|
|
|
* |
|
Represents beneficial ownership of less than 1% of the
outstanding shares of common stock. |
|
(1) |
|
Unless otherwise indicated, the amounts shown as being
beneficially owned by each stockholder or group listed above
represent shares over which that stockholder or group holds sole
investment power. |
|
|
|
(2) |
|
The managing member of PCG Satellite Investments LLC is
CalPERS/PCG Corporate Partners, LLC, whose manager is PCG
Corporate Partners Investments LLC. PCG Corporate Partners
Investments LLC is owned and managed by Christopher J. Bower,
Timothy Kelleher, Douglas Meltzer and Pacific Corporate Group
Holdings, Inc., which is in turn wholly owned and managed by
Christopher J. Bower. According to Amendment No. 1 to the
Schedule 13G filed with the SEC on January 13, 2009, each
of CalPERS/PCG Corporate Partners, LLC, PCG Corporate Partners
Investments LLC, Pacific Corporate Group Holdings LLC,
Christopher J. Bower and Pacific Corporate Group Holdings, Inc.
disclaims beneficial ownership of any securities, except to the
extent of their pecuniary interest therein. Timothy Kelleher, a
director of the Company, is a Managing Director of Pacific
Corporate Group LLC, which is an affiliate of PCG Satellite
Investments LLC. PCG Satellite Investments LLCs address is
1200 Prospect Street, Suite 200, La Jolla, California
92037. |
|
|
|
(3) |
|
Winslow Management Company, LLCs address is 99 High
Street, 12th Floor, Boston, Massachusetts 02110. Share ownership
is based on a Schedule 13G filed by Winslow Management
Company on February 17, 2009. |
13
|
|
|
(4) |
|
Stephens Investment Management, LLC is the general partner and
investment manager for certain investment limited partnerships
owning 2,234,886 shares of common stock. Paul H. Stephens,
W. Bradford Stephens and P. Bartlett Stephens are the
managing members and owners of Stephens Investment Management,
LLC. According to the Schedule 13G filed with the SEC on
February 4, 2008, each of Stephens Investment Management,
LLC, Paul H. Stephens, W. Bradford Stephens and P. Bartlett
Stephens disclaims beneficial ownership of the shares except to
the extent of his or its pecuniary interest therein. Stephens
Investment Management, LLCs address is One Ferry
Building, Suite 255, San Francisco, California 94111.
Share ownership is based on a Form 13F filed by Stephens
Investment Management, LLC on February 12, 2009. |
|
|
|
(5) |
|
Includes 2,168,779 shares of common stock held by OHB
Technology A.G., and 60,324 shares of common stock held by
ORBCOMM Deutschland A.G. Marco Fuchs, one of our directors, is
Chief Executive Officer of OHB Technology A.G. which owns
ORBCOMM Deutschland A.G. Manfred Fuchs, Marco Fuchs and Christa
Fuchs hold voting and investment power with regard to the shares
held by OHB Technology A.G. and ORBCOMM Deutschland A.G. OHB
Technology A.G.s address is Universitaetsalle
27-29,
Bremen, D-28539, Germany. |
|
|
|
(6) |
|
Royce & Associates, LLCs address is 1414 Avenue
of the Americas, New York, New York 10019. Share ownership is
based on a Schedule 13G filed by Royce &
Associates, LLC on January 27, 2009. |
|
(7) |
|
Includes 154,181 shares of common stock held by Marc
Eisenberg. Also includes 280,003 shares of common stock
issuable to Mr. Eisenberg upon the exercise of options and
207,974 shares of common stock underlying SARs, in each
case, that are currently exercisable. |
|
(8) |
|
Includes 53,158 shares of common stock held by Robert G.
Costantini. Also includes 169,639 shares of common stock
underlying SARs that are currently exercisable. |
|
(9) |
|
Includes 33,820 shares of common stock held by John J.
Stolte, Jr. Also includes 51,002 shares of common stock
issuable to Mr. Stolte upon exercise of options and
30,000 shares of common stock underlying SARs, in each
case, that are currently exercisable. |
|
|
|
(10) |
|
Includes 25,092 shares of common stock held by Christian G.
Le Brun. Also includes 50,000 shares of common stock
issuable to Mr. Le Brun upon exercise of options and
30,000 shares of common stock underlying SARs, in each
case, that are currently exercisable. |
|
|
|
(11) |
|
Includes 931,317 shares of common stock held by Jerome B.
Eisenberg and 15,759 shares of common stock held by Cynthia
Eisenberg, Mr. Eisenbergs wife. Also includes
300,003 shares of common stock issuable to
Mr. Eisenberg upon exercise of options and
145,188 shares of common stock underlying SARs, in each
case, that are currently exercisable. |
|
|
|
(12) |
|
Mr. Kelleher is a Managing Director of Pacific Corporate
Group Holdings LLC, which is an affiliate of PCG Satellite
Investments LLC. |
14
COMPENSATION
DISCUSSION AND ANALYSIS
The following Compensation Discussion and Analysis describes the
material elements of compensation for our executive officers
identified in the Summary Compensation Table (our Named
Executive Officers).
Compensation
Committee
Our Compensation Committee assists our board of directors in
fulfilling its responsibilities with respect to oversight and
determination of executive compensation and human resources
matters, including the compensation of the Named Executive
Officers. A description of the Compensation Committees
composition, functions, duties and responsibilities is set forth
in this proxy statement under Board of Directors and
Committees Compensation Committee.
The Compensation Committees roles and responsibilities are
set forth in a written charter which is available on our website
at www.orbcomm.com under the heading Investor
Relations and the subheading Corporate
Governance and is available in print to any shareholder
upon request.
Philosophy
and Objectives of Compensation Programs
Our executive compensation philosophy is to create a system that
rewards executives for performance and focuses our management
team on the critical short-term and long-term objectives. The
primary objectives of our executive compensation programs are to
attract, motivate and retain talented and dedicated executives,
to link annual and long-term cash and stock incentives to
achievement of specified performance objectives, and to align
executives incentives with stockholder value creation. To
achieve these objectives, the Compensation Committee has
implemented compensation programs that make a substantial
portion of the executives overall compensation contingent
upon achieving key short-term business and long-term strategic
goals established by our board of directors, such as the
expansion of our communications system, the establishment and
maintenance of key strategic relationships, and the growth of
our subscriber base as well as our financial and operational
performance, as measured by metrics such as adjusted EBITDA
(defined as EBITDA less stock-based compensation, pre-control
earnings from consolidated subsidiary and minority interest),
revenues, net number of satellite subscriber communicators added
to our communications system (net satellite subscriber
additions) and net number of terrestrial subscribers added to
our communications system (net terrestrial subscriber
additions). The Compensation Committees goal is to set
executive compensation at levels the committee believes are
competitive against compensation offered by other rapidly
growing companies of similar size and stage of development
against whom we compete for executive talent in the
communications industry, while taking into account our
performance and our own strategic goals.
We seek to provide executive compensation that is competitive in
order to attract, motivate and retain key talent, while also
rewarding executives for achieving goals designed to generate
returns for our stockholders, but not for poor performance, by
linking compensation to overall business performance and the
achievement of performance goals. As a result, we believe that
compensation packages provided to our executives, including our
Named Executive Officers, should include both cash and
stock-based compensation that reward performance as measured
against performance goals.
We have not retained a compensation consultant to review our
policies and procedures with respect to executive compensation,
and do not seek to set our executive compensation to any
specific benchmarks or peer group. Instead, we use general
competitive market data available to us relating to compensation
levels, mix of elements and compensation strategies being used
by companies of comparable size and stage of development
operating in the communications industry, and review such data
against the aggregate level of our executive compensation, as
well as the mix of elements used to compensate our executive
officers.
Elements
of Compensation
Base Salary. Base salaries are determined on
an individual basis, are based on job responsibilities and
individual contribution and are intended to provide our
executives with current income. Base salaries for our Named
Executive Officers are reviewed annually and may be adjusted to
reflect any changes in job
15
responsibilities and individual contribution, as well as
competitive conditions in the market for executive talent. Our
senior management proposes new base salary amounts to the
Compensation Committee for approval based on: an evaluation of
individual performance and expected future contributions; a goal
to ensure competitive compensation against the external market;
and comparison of the base salaries of the executive officers
who report directly to our Chief Executive Officer to ensure
internal equity.
For 2008, the base salaries of Messrs. M. Eisenberg,
Costantini, Stolte, Le Brun and J. Eisenberg were established
pursuant to employment agreements entered into by the individual
Named Executive Officer and us.
Annual Cash Bonus. The Compensation Committee
has the authority to grant discretionary annual cash bonuses to
employees. Annual cash bonuses are designed to align
employees goals with the Companys financial and
operational objectives for the current year and to reward
individual performance. These objectives vary depending on the
individual employee, but relate generally to strategic factors
such as communications system expansion and operational
improvements, service implementation in new geographic areas,
net satellite and terrestrial subscriber additions, and to
financial factors such as revenues and improving our results of
operations, as measured by adjusted EBITDA. These performance
measures are primarily objective criteria that can be readily
measured and do not require subjective determinations.
None of the Named Executive Officers, except for Mr. J.
Eisenberg after 2008, is eligible to participate in our
discretionary annual cash bonus program, pursuant to which the
board of directors or the Compensation Committee annually
designates a specified bonus pool based on our performance for
the fiscal year to be available for cash bonuses to eligible
employees in the discretion of the Compensation Committee based
on recommendations of management and evaluations of individual
performance.
Pursuant to their employment agreements, each Named Executive
Officer is generally eligible to receive annual bonuses, payable
in cash based on a percentage of base salary (which may, in some
cases, exceed 100%) and dependent upon achieving or exceeding
certain performance targets for that fiscal year. Generally,
bonuses are not earned unless 90% of the applicable performance
target is met for a given fiscal year and these amounts increase
as actual performance exceeds target levels. Certain 2008 annual
bonuses were based on achieving certain operational milestones
by specified dates. For 2008, the annual bonus payable for each
Named Executive Officer was allocated with respect to specified
performance targets as set forth in the following table:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Satellite
|
|
|
Net Terrestrial
|
|
|
|
|
|
|
|
|
|
Target Adjusted
|
|
|
Subscriber
|
|
|
Subscriber
|
|
|
|
|
|
Other Operational
|
|
Name
|
|
EBITDA
|
|
|
Additions
|
|
|
Additions
|
|
|
Revenues
|
|
|
Targets
|
|
|
Marc Eisenberg
|
|
|
40
|
%
|
|
|
20
|
%
|
|
|
5
|
%
|
|
|
20
|
%
|
|
|
15
|
%
|
Robert Costantini
|
|
|
45
|
%
|
|
|
20
|
%
|
|
|
5
|
%
|
|
|
20
|
%
|
|
|
10
|
%
|
John Stolte
|
|
|
10
|
%
|
|
|
10
|
%
|
|
|
2.5
|
%
|
|
|
12.5
|
%
|
|
|
65
|
%
|
Christian Le Brun
|
|
|
30
|
%
|
|
|
16
|
%
|
|
|
4
|
%
|
|
|
20
|
%
|
|
|
30
|
%
|
Jerome Eisenberg
|
|
|
25
|
%
|
|
|
10
|
%
|
|
|
2.5
|
%
|
|
|
12.5
|
%
|
|
|
50
|
%
|
We believe that our performance targets are established at
levels that are achievable. By providing for significant
incentives for exceeding those targets, we motivate our Named
Executive Officers to achieve strategic business objectives that
result in the creation of value to us and our stockholders over
the long-term.
In March 2009, our Compensation Committee determined that
performance-based annual incentive awards relating to
(1) fiscal year 2008 target adjusted EBITDA had been earned
based on achieving the target amount during 2008,
(2) fiscal year 2008 target revenues were earned by the
Name Executive Officers at a 93.5% payout based on achieving 99%
of the target amount during 2008, (3) fiscal year 2008
target net satellite subscriber additions were not earned based
on not achieving at least 90% of the target during 2008,
(4) fiscal year 2008 target net terrestrial additions were
not earned based on not achieving at least 90% of the target
during 2008 and (5) certain fiscal year 2008 operational
targets were not earned based on not achieving the targets
during 2008.
16
In March 2009, our Compensation Committee established 2009
operational and financial performance targets for which annual
bonuses will be paid to Messrs. M. Eisenberg, Costantini,
Stolte and Le Brun based on achieving certain operational
milestones by specific dates. Mr. J. Eisenberg is not
eligible for a performance-based annual incentive award for
2009. For 2009, the annual bonus payable for each of
Messrs. M. Eisenberg, Costantini, Stolte and Le Brun based
on achieving certain operational milestones by specific dates
was allocated with respect to specified performance targets as
set forth in the following table:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Satellite
|
|
|
Net Terrestrial
|
|
|
|
|
|
|
|
|
|
Target Adjusted
|
|
|
Subscriber
|
|
|
Subscriber
|
|
|
|
|
|
Other Operational
|
|
Name
|
|
EBITDA
|
|
|
Additions
|
|
|
Additions
|
|
|
Revenues
|
|
|
Targets
|
|
|
Marc Eisenberg
|
|
|
25
|
%
|
|
|
25
|
%
|
|
|
5
|
%
|
|
|
15
|
%
|
|
|
30
|
%
|
Robert Costantini
|
|
|
40
|
%
|
|
|
20
|
%
|
|
|
5
|
%
|
|
|
10
|
%
|
|
|
25
|
%
|
John Stolte
|
|
|
10
|
%
|
|
|
5
|
%
|
|
|
|
|
|
|
5
|
%
|
|
|
80
|
%
|
Christian Le Brun
|
|
|
5
|
%
|
|
|
5
|
%
|
|
|
|
|
|
|
5
|
%
|
|
|
85
|
%
|
Long-Term Equity-Based Incentives. In addition
to the short-term cash compensation payable to our Named
Executive Officers, our Compensation Committee believes that the
interests of our stockholders are best served when a substantial
portion of our Named Executive Officers compensation is
comprised of equity-based and other long-term incentives that
appreciate in value contingent upon increases in the share price
of our common stock and other indicators that reflect
improvements in business fundamentals. Therefore, it is our
Compensation Committees intention to make grants of
equity-based awards to our Named Executive Officers and other
key employees at such times and in such amounts as may be
required to accomplish the objectives of our compensation
programs. Please see the Grants of Plan-Based Awards Table and
accompanying narrative disclosures set forth in this proxy
statement for more information regarding the grants of
equity-based awards to our Named Executive Officers in fiscal
year 2008. We have not timed grants of equity-based awards in
coordination with the release of non-public information nor have
we timed the release of non-public information for the purpose
of affecting the value of executive compensation.
Under the 2006 LTIP, the Compensation Committee has the ability
to provide a number of equity-based awards, including restricted
stock units (RSUs), stock appreciation rights
(SARs), stock options, stock, restricted stock,
performance units and performance shares to promote our
long-term growth and profitability. Following adoption of the
2006 LTIP, we ceased to grant additional stock options under the
2004 Stock Option Plan. The 2004 Stock Option Plan will continue
to govern all stock option awards granted under the 2004 Stock
Option Plan prior to the adoption of the 2006 LTIP. Since
adopting the 2006 LTIP, we have changed the mix of our
equity-based incentives from stock options to a mix of RSUs and
SARs. This combination of equity-based incentives is intended to
benefit stockholders by enabling us to better attract and retain
top talent in a marketplace where such incentives are prevalent.
We believe that awards of RSUs and SARs provide an effective
vehicle for promoting a long-term share ownership perspective
for our senior management and employees and closely align the
interests of senior management and employees with our
achievement of longer-term financial objectives that enhance
stockholder value, while at the same time limiting the dilutive
effects of such equity-based awards relative to our prior
practice of granting stock options. We have not adopted stock
ownership guidelines, and, other than with respect to Jerome
Eisenberg, our stock compensation plans have provided the
principal method for our executive officers to acquire equity or
equity-based interests in us.
RSUs. A restricted stock unit, or RSU, is a
contractual right to receive at a specified future vesting date
an amount in respect of each RSU based on the fair market value
on such date of one share of our common stock, subject to such
terms and conditions as the Compensation Committee may
establish. RSUs that become payable in accordance with their
terms and conditions will be settled in cash, shares of our
common stock, or a combination of cash and our common stock, as
determined by the Compensation Committee. The Compensation
Committee has determined that all currently outstanding RSUs
will be settled in shares of common stock. The Compensation
Committee may provide for the accumulation of dividend
equivalents in cash, with or without interest, or the
reinvestment of dividend equivalents in our common stock held
subject to the same conditions as the RSU and such terms and
conditions as the Compensation Committee may determine. No
participant who holds RSUs will have any ownership interest in
the shares of common stock to
17
which such RSUs relate until and unless payment with respect to
such RSUs is actually made in shares of common stock. Vested and
unvested RSUs awarded to certain of our employees, including our
Named Executive Officers, will be subject to forfeiture in the
event such employees breach their non-competition
and/or
non-solicitation covenants set forth in their award agreements
and unvested RSUs are subject to cancellation if, prior to
vesting, such employees ceased to be employed by us for any
reason.
Time-based RSUs typically vest in three equal installments based
on continued employment over a three-year period.
Performance-based RSUs typically vest in three equal
installments over a three-year period based upon the achievement
of specific operational and financial performance targets that
we believe are important to our long-term success, including
adjusted EBITDA targets, net satellite or terrestrial subscriber
additions on our network, government approvals with respect to
our communications network, and strategic factors such as
communications system expansion and operational improvements.
The Compensation Committee, on the recommendation of management,
linked target performance levels to these measures, as we
believe that each of them is an important factor in our revenue
growth and for sustaining our business model. The outstanding
performance-based RSU awards are generally structured to have a
three-year vesting period beginning in 2006, and to be subject
to a percentage reduction in the event that the performance
targets are not attained. These performance-based RSUs vest upon
achieving certain operational and financial performance targets
by specified dates as determined by the Compensation Committee.
We believe that the vesting periods in connection with these
time-based and performance-based awards are appropriate for the
following reasons:
|
|
|
|
|
they are intended to help retain employees, including
executives, by rewarding them for extended, continuous service
with us;
|
|
|
|
they are time periods that incentivize and focus executives on
the long-term performance of our business over reasonable
timeframes, while minimizing the potential that longer vesting
periods might dilute the motivation of the executives; and
|
|
|
|
they allow the Compensation Committee to formulate performance
targets annually that are aligned with our dynamic business
plans and external industry factors.
|
In 2006, Messrs. M. Eisenberg, Costantini, Stolte, Le Brun
and J. Eisenberg were granted time-based RSUs which vest in
three equal installments over a three-year period. In 2006,
Messrs. M. Eisenberg, Costantini, Le Brun and J. Eisenberg
were issued performance-based RSUs under the 2006 LTIP, which
vest in three equal installments over a three-year period based
on the achievement of specified performance targets established
for 2006, 2007 and 2008 by the Compensation Committee. In March
2008, the Compensation Committee established performance targets
for adjusted EBITDA, net satellite subscriber additions, net
terrestrial subscriber additions and revenues relating to the
third installment (the 2008 performance targets) of the
performance-based RSUs issued in 2006 and, accordingly, these
awards were considered granted for accounting purposes on such
date to Messrs. M. Eisenberg, Costantini, Le Brun and J.
Eisenberg in the amounts set forth in the Grants of Plan-Based
Awards Table. In general, RSUs granted to each of our Named
Executive Officers were allocated based on a balance between the
retention and incentive objectives of these long-term equity
awards. Mr. Stolte did not receive RSUs relating to 2008
performance targets. For 2008, the performance-based RSUs
granted to each of Messrs. M. Eisenberg, Costantini, Le
Brun and J. Eisenberg were allocated with respect to specified
performance targets as set forth in the following table:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Satellite
|
|
|
Net Terrestrial
|
|
|
|
|
|
|
|
|
|
Target Adjusted
|
|
|
Subscriber
|
|
|
Subscriber
|
|
|
|
|
|
|
|
Name
|
|
EBITDA
|
|
|
Additions
|
|
|
Additions
|
|
|
Revenues
|
|
|
Total
|
|
|
Marc Eisenberg
|
|
|
18,667
|
|
|
|
7,467
|
|
|
|
1,867
|
|
|
|
9,333
|
|
|
|
37,334
|
|
Robert Costantini
|
|
|
1,944
|
|
|
|
778
|
|
|
|
195
|
|
|
|
972
|
|
|
|
3,889
|
|
Christian Le Brun
|
|
|
2,334
|
|
|
|
933
|
|
|
|
233
|
|
|
|
1,167
|
|
|
|
4,667
|
|
Jerome Eisenberg
|
|
|
24,889
|
|
|
|
9,956
|
|
|
|
2,488
|
|
|
|
12,445
|
|
|
|
49,778
|
|
In March 2009, our Compensation Committee determined that
performance-based RSU awards relating to (1) fiscal year
2008 target adjusted EBITDA vested based on achieving the target
amount during 2008, (2) fiscal year 2008 target revenues
vested at a 93.5% level based on achieving 99% of the target
amount during 2008, (3) fiscal year 2008 target net
satellite subscriber additions lapsed unvested based on not
18
achieving at least 90% of the target during 2008 and
(4) fiscal year 2008 target net terrestrial subscriber
additions lapsed unvested based on not achieving at least 90% of
the target during 2008.
The 2008 performance target amounts with respect to these
performance-based RSUs were the same as those for the annual
cash bonuses described above.
SARs. A stock appreciation right, or SAR, is
the right to receive a payment measured by the increase in the
fair market value of a specified number of shares of our common
stock from the date of grant of the SAR to the date on which the
participant exercises the SAR. Under the 2006 LTIP, SARs may be
(1) freestanding SARs or (2) tandem SARs granted in
conjunction with an option, either at the time of grant of the
option or at a later date, and exercisable at the
participants election instead of all or any part of the
related option. Upon the exercise of a SAR, we will deliver
cash, shares of our common stock valued at fair market value on
the date of exercise or a combination of cash and shares our
common stock, as the Compensation Committee may determine.
Vested and unvested SARs granted to certain of our employees,
including our Named Executive Officers, are subject to
forfeiture in the event such employees breach the
non-competition
and/or
non-solicitation covenants set forth in their award agreements
and unvested SARs are subject to cancellation if, prior to
vesting, such employees ceased to be employed by us for any
reason.
Time-based SARs and performance-based SARs typically vest in the
same manner as time-based RSUs and performance-based RSUs. In
2006, Mr. Costantini was granted time-based SARs which vest
in three equal installments over a three-year period. In 2006,
Messrs. M. Eisenberg, Costantini and J. Eisenberg were
issued performance-based SARs under the 2006 LTIP, which vest in
three equal installments over a three-year period based on the
achievement of specified performance targets established for
2006, 2007 and 2008 by the Compensation Committee. In March
2008, the Compensation Committee established performance targets
as described above relating to the third installment (the 2008
performance targets) of the performance-based SARs issued in
2006 and, accordingly these awards were considered granted for
accounting purposes on such date to Messrs. M. Eisenberg,
Costantini and J. Eisenberg in the amounts set forth in the
Grants of Plan-Based Awards Table. For 2008, the
performance-based SARs granted to each of Messrs. M.
Eisenberg, Costantini and J. Eisenberg were allocated with
respect to specified performance targets as set forth in the
following table:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Satellite
|
|
|
Net Terrestrial
|
|
|
|
|
|
|
|
|
|
Target Adjusted
|
|
|
Subscriber
|
|
|
Subscriber
|
|
|
|
|
|
|
|
Name
|
|
EBITDA
|
|
|
Additions
|
|
|
Additions
|
|
|
Revenues
|
|
|
Total
|
|
|
Marc Eisenberg
|
|
|
21,667
|
|
|
|
8,667
|
|
|
|
2,167
|
|
|
|
10,833
|
|
|
|
43,334
|
|
Robert Costantini
|
|
|
11,111
|
|
|
|
4,444
|
|
|
|
1,111
|
|
|
|
5,556
|
|
|
|
22,222
|
|
Jerome Eisenberg
|
|
|
25,000
|
|
|
|
10,000
|
|
|
|
2,500
|
|
|
|
12,500
|
|
|
|
50,000
|
|
The 2008 performance target amounts with respect to these
performance-based SARs were the same as those for the annual
cash bonuses described above.
In March 2009, our Compensation Committee determined that
performance-based SAR awards relating to (1) fiscal year
2008 target adjusted EBITDA vested based on achieving the target
amount during 2008, (2) fiscal year 2008 target revenues
vested at a 93.5% level based on achieving 99% of the target
amount during 2008, (3) fiscal year 2008 target net
satellite subscriber additions lapsed unvested based on not
achieving at least 90% of the target during 2008 and
(4) fiscal year 2008 target net terrestrial additions
lapsed unvested based on not achieving at least 90% of the
target during 2008.
Stock Options. We may grant stock options
exercisable at such time or times, and subject to such terms and
conditions, as the Compensation Committee may determine
consistent with the terms of the 2006 LTIP. The exercise price
of such stock options will be equal to or higher than the fair
market value of our common stock on the date of grant.
Our 2004 Stock Option Plan authorized us to grant options to
purchase common stock to our employees, directors and
consultants. Stock option grants were made at the commencement
of employment or to meet other special retention or performance
objectives. The Compensation Committee reviewed and approved
stock option awards to executive officers, including Named
Executive Officers, based upon its assessment of
19
individual performance, a review of each executives
existing long-term incentives, and retention considerations.
Periodic stock option grants were made at the discretion of the
Compensation Committee to eligible employees and, in appropriate
circumstances, the Compensation Committee considered the
recommendations of members of management, such as our Chief
Executive Officer. In 2004, certain Named Executive Officers
were awarded stock options reflected in the Outstanding Equity
Awards at Fiscal Year-End Table set forth in this proxy
statement in connection with a merit-based grant to a large
number of employees intended to encourage an ownership culture
among our employees. In 2006, Mr. Le Brun received a stock
option grant with his joining the Company. Stock options granted
by us have an exercise price equal to the fair market value of
our common stock on the date of grant, typically vest 25% per
annum based upon continued employment over a four-year period,
and generally expire ten years after the date of grant.
Incentive stock options also include certain other terms
necessary to assure compliance with the Internal Revenue Code of
1986, as amended (the Code).
We may also grant RSUs or SARs to executives under special
circumstances outside of the annual process. Grants under the
2006 LTIP are made from time to time to selected executives in
connection with talent management objectives, giving particular
attention to employees leadership potential and potential
future contributions in achieving critical business goals and
objectives. In February 2008, Mr. Costantini was granted
100,000 time-based RSUs, of which 40,000 RSUs vested on
December 31, 2008, 30,000 RSUs will vest on
December 31, 2009 and 30,000 RSUs will vest on
December 31, 2010.
We may also grant RSUs and SARs, as deemed appropriate by the
Compensation Committee, including under the terms of employment
agreements with our Named Executive Officers. As part of the
execution of new employment agreements in 2008, each of the
Named Executive Officers was granted SARs as set forth in the
accompanying narrative disclosures set forth in this proxy
statement.
Personal
Benefits
Our Named Executive Officers participate in a variety of
retirement, health and welfare, and vacation benefits designed
to enable us to attract and retain our workforce in a
competitive marketplace. Health and welfare and vacation
benefits help ensure that we have a productive and focused
workforce through reliable and competitive health and other
benefits. Generally these programs are the same offered to all
employees.
Perquisites
Our Named Executive Officers are provided a limited number of
perquisites whose primary purpose is to minimize distractions
from the executives attention to the Companys
business. An item is not a perquisite if it is integrally and
directly related to the performance of the executives
duties. An item is a perquisite if it confers a direct or
indirect benefit that has a personal aspect, without regard to
whether it may be provided for some business reason or for our
convenience, unless it is generally available on a
non-discriminatory basis to all employees.
The principal perquisites offered to our Named Executive
Officers are car allowances and life insurance premiums. Please
see the Summary Compensation Table and accompanying narrative
disclosures set forth in this proxy statement for more
information on perquisites and other personal benefits we
provide to our Named Executive Officers.
401(k)
Plan
We maintain a 401(k) retirement plan intended to qualify under
Sections 401(a) and 401(k) of the Code. The plan is a
defined contribution plan that covers all our employees who have
been employed for three months or longer, beginning on the date
of employment. Employees may contribute up to 15% of their
eligible compensation (subject to certain limits) as pretax,
salary deferral contributions. We have the option of matching up
to 15% of 100% of the amount contributed by each employee up to
4% of employees compensation. In addition, the plan
contains a discretionary contribution component pursuant to
which we may make an additional annual contribution.
Contributions made by us vest over a five-year period from the
employees date of employment. We have not made any
contributions since the inception of the plan.
20
Severance
and Change in Control Benefits
Severance and change in control benefits are designed to
facilitate our ability to attract and retain executives as we
compete for talented employees in a marketplace where such
protections are commonly offered. The severance and change in
control benefits found in the Named Executive Officers
employment agreements are designed to encourage employees to
remain focused on our business in the event of rumored or actual
fundamental corporate changes. These benefits include continued
base salary payments and health insurance coverage (typically
for a one-year period), acceleration of the vesting of
outstanding equity-based awards, such as options, RSUs and SARs
(without regard to the satisfaction of any time-based
requirements or performance criteria), and extension of
post-termination exercise periods for options and SARs
(typically for 30 to 90 days).
Termination Provisions. Our employment
agreements with the Named Executive Officers provide severance
payments and other benefits in an amount we believe is
appropriate, taking into account the time it is expected to take
a separated employee to find another job. The payments and other
benefits are provided because we consider a separation to be a
Company-initiated termination of employment that under different
circumstances would not have occurred and which is beyond the
control of a separated employee. Separation benefits are
intended to ease the consequences to an employee of an
unexpected termination of employment. We benefit by requiring a
general release from separated employees. In addition, we have
included post-termination non-compete and non-solicitation
covenants in certain individual employment agreements.
We consider it likely that it will take more time for
higher-level employees to find new employment, and therefore
senior management generally is paid severance for a longer
period. Additional payments may be permitted in some
circumstances as a result of individual negotiations with
executives, especially where we desire particular
nondisparagement, cooperation with litigation, non-competition
and non-solicitation terms. See the descriptions of the
individual employment agreements with the Named Executive
Officers under Certain Relationships and Transactions with
Related Persons Employment Agreements for
additional information.
Change of Control Provisions. Under the 2004
Stock Option Plan and the 2006 LTIP and the award agreements
under those plans, our stock options, RSUs and SARs generally
vest upon a change of control, whether or not time vesting
requirements or performance targets have been achieved. Under
the employment agreements with our Named Executive Officers,
other change of control benefits generally require a change of
control, followed by a termination of or change in an
executives employment. In adopting the so-called
single trigger treatment for equity-based awards, we
were guided by a number of principles: being consistent with
current market practice among communications company peers; and
keeping employees relatively whole for a reasonable period but
avoid creating a windfall. Single trigger vesting
ensures that ongoing employees are treated the same as
terminated employees with respect to outstanding equity-based
grants. Single trigger vesting provides employees with the same
opportunities as stockholders, who are free to sell their equity
at the time of the change in control event and thereby realize
the value created at the time of the change of control
transaction. The company that made the original equity grant
will no longer exist after a change of control and employees
should not be required to have the fate of their outstanding
equity tied to the new companys future success. Single
trigger vesting on performance-contingent equity, in particular,
is appropriate given the difficulty of replicating the
underlying performance goals.
Tax and
Accounting Implications
Deductibility
of Executive Compensation
Section 162(m) of the Code limits our tax deductions
relating to the compensation paid to Named Executive Officers,
unless the compensation is performance-based and the material
terms of the applicable performance goals are disclosed to and
approved by our stockholders. All of our equity-based
compensation plans have received stockholder approval and, to
the extent applicable, were prepared with the intention that our
incentive compensation would qualify as performance-based
compensation under Section 162(m). While we intend to
continue to rely on performance-based compensation programs, we
recognize the need for flexibility in making executive
compensation decisions, based on the relevant facts and
circumstances, so that
21
we achieve our best interests and the best interests of our
stockholders. To the extent consistent with this goal and to
help us manage our compensation costs, we attempt to satisfy the
requirements of Section 162(m) with respect to those
elements of our compensation programs that are performance-based.
Accounting
for Stock-Based Compensation
Beginning January 1, 2006, we adopted Statement of
Financial Accounting Standards (SFAS) No. 123 (Revised
2004), Share-Based Payments
(SFAS 123(R)), and began recording
stock-based compensation expense in our financial statements in
accordance with SFAS 123(R).
Certain
Awards Deferring or Accelerating the Receipt of
Compensation
Section 409A of the Code, enacted as part of the American
Jobs Creation Act of 2004, imposes certain new requirements
applicable to nonqualified deferred compensation
plans. If a nonqualified deferred compensation plan
subject to Section 409A fails to meet, or is not operated
in accordance with, these new requirements, then all
compensation deferred under the plan may become immediately
taxable. We intend that awards granted under the 2006 LTIP will
comply with the requirements of Section 409A and intend to
administer and interpret the 2006 LTIP in such a manner.
Role of
Executives and Others in Establishing Compensation
During 2008, the persons serving as our Chief Executive Officer,
Marc Eisenberg and Jerome Eisenberg reviewed the performance of
the Named Executive Officers (other than his own, which was
reviewed by the Compensation Committee), and met on a
case-by-case
basis with each of the other Named Executive Officers to reach
agreements with respect to salary adjustments and annual award
amounts, which were then presented to the Compensation Committee
for approval. The Compensation Committee can exercise discretion
in modifying any recommended adjustments or awards to
executives. Each of Messrs. M. Eisenberg and
J. Eisenberg, in his capacity as Chief Executive Officer,
attended meetings of the Compensation Committee in 2008.
The day-to-day design and administration of benefits, including
health and vacation plans and policies applicable to salaried
employees in general are handled by our Finance and Legal
Departments. Our Compensation Committee (or board of directors)
remains responsible for certain fundamental changes outside the
day-to-day requirements necessary to maintain these plans and
policies.
22
COMPENSATION
COMMITTEE REPORT
The Compensation Committee of the Company has reviewed and
discussed the Compensation Discussion and Analysis required by
Item 402(b) of
Regulation S-K
with management and based on such review and discussion, the
Compensation Committee recommended to the board of directors
that the Compensation Discussion and Analysis be included in
this proxy statement and the Annual Report on
Form 10-K
for the year ended December 31, 2008.
Compensation Committee
Hans E. W. Hoffmann, Chairman
Timothy Kelleher
John Major
23
COMPENSATION
OF EXECUTIVE OFFICERS
Summary
Compensation Table
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
|
Option
|
|
|
Incentive Plan
|
|
|
All other
|
|
|
|
|
|
|
|
|
|
Salary
|
|
|
Awards(1)
|
|
|
Awards(2)
|
|
|
Compensation(3)
|
|
|
Compensation(4)
|
|
|
Total
|
|
Name and Principal Position
|
|
Year
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
Marc Eisenberg (42)
|
|
|
2008
|
|
|
$
|
356,437
|
|
|
$
|
549,008
|
|
|
$
|
325,968
|
|
|
$
|
302,922
|
|
|
$
|
14,318
|
|
|
$
|
1,548,653
|
|
Chief Executive Officer
|
|
|
2007
|
|
|
|
315,000
|
|
|
|
823,601
|
|
|
|
176,484
|
|
|
|
154,350
|
|
|
|
10,982
|
|
|
|
1,480,417
|
|
|
|
|
2006
|
|
|
|
294,167
|
|
|
|
581,676
|
|
|
|
113,840
|
|
|
|
214,527
|
|
|
|
19,304
|
|
|
|
1,223,514
|
|
Robert Costantini (49)
|
|
|
2008
|
|
|
|
283,500
|
|
|
|
287,869
|
|
|
|
262,672
|
|
|
|
243,788
|
|
|
|
10,292
|
|
|
|
1,088,121
|
|
Executive Vice President
|
|
|
2007
|
|
|
|
270,000
|
|
|
|
90,943
|
|
|
|
251,023
|
|
|
|
175,500
|
|
|
|
10,159
|
|
|
|
797,625
|
|
and Chief Financial
|
|
|
2006
|
|
|
|
67,500
|
|
|
|
64,315
|
|
|
|
178,115
|
|
|
|
59,479
|
|
|
|
2,506
|
|
|
|
371,915
|
|
Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John J. Stolte, Jr. (49)
|
|
|
2008
|
|
|
|
236,250
|
|
|
|
222,442
|
|
|
|
68,100
|
|
|
|
109,302
|
|
|
|
1,218
|
|
|
|
637,312
|
|
Executive Vice
|
|
|
2007
|
|
|
|
225,000
|
|
|
|
291,781
|
|
|
|
3,475
|
|
|
|
21,094
|
|
|
|
539
|
|
|
|
541,889
|
|
President Technology
|
|
|
2006
|
|
|
|
212,500
|
|
|
|
344,196
|
|
|
|
6,983
|
|
|
|
107,782
|
|
|
|
639
|
|
|
|
672,100
|
|
and Operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Christian G. Le Brun (41)
|
|
|
2008
|
|
|
|
201,300
|
|
|
|
70,245
|
|
|
|
164,244
|
|
|
|
88,622
|
|
|
|
452
|
|
|
|
524,863
|
|
Executive Vice President and General Counsel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jerome B. Eisenberg (69)
|
|
|
2008
|
|
|
|
256,500
|
|
|
|
726,284
|
|
|
|
159,476
|
|
|
|
50,666
|
|
|
|
11,360
|
|
|
|
1,204,286
|
|
Chairman of the Board
|
|
|
2007
|
|
|
|
355,000
|
|
|
|
982,189
|
|
|
|
194,461
|
|
|
|
171,366
|
|
|
|
20,668
|
|
|
|
1,723,684
|
|
and Former Chief
|
|
|
2006
|
|
|
|
335,771
|
|
|
|
786,560
|
|
|
|
133,456
|
|
|
|
263,233
|
|
|
|
20,362
|
|
|
|
1,539,382
|
|
Executive Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The amounts set forth in the Stock Awards column
represent the compensation costs for financial statement
purposes recognized in 2008, 2007 and 2006 relating to
time-based and performance-based RSU awards that were granted in
2006 and 2007 and 2008 in accordance with Statement of Financial
Accounting Standards No. 123 (Revised 2004), Share-Based
Payment, (SFAS 123(R)). For a discussion of the
assumptions used to calculate the value of the amounts in the
Stock Awards column see Note 5 in our
consolidated financial statements included in our Annual Report
on
Form 10-K
for the year ended December 31, 2008. See the Grants of
Plan-Based Awards Table and Compensation Discussion and
Analysis Elements of Compensation
Long-Term Equity-Based Incentives for a further discussion
regarding RSU awards in 2008, 2007 and 2006 and the Outstanding
Equity Awards at Fiscal Year-End Table for a further discussion
regarding outstanding RSU awards. |
|
(2) |
|
The amounts set forth in the Options Awards column
represent the compensation costs for financial statement
purposes recognized in 2008, 2007 and 2006 in accordance with
SFAS 123(R) relating to option awards granted in 2006 and
2004 and time-based SAR awards granted in 2008 and 2006 and
performance-based SAR awards granted in 2008, 2007 and 2006. The
assumptions used to calculate the value of the amounts in the
Options Awards column are described in Note 5
in our consolidated financial statements included in our Annual
Report on
Form 10-K
for the year ended December 31, 2008. See
Compensation Discussion and Analysis Elements
of Compensation Long-Term Equity-Based
Incentives for a further discussion regarding SAR awards
in 2008, 2007 and 2006 and the Outstanding Equity Awards at
Fiscal Year-End Table for a further discussion regarding
outstanding SAR awards. |
|
(3) |
|
The amounts set forth in the Non-Equity Incentive Plan
Compensation column represent the annual incentive bonus
paid to Messrs. M. Eisenberg, Costantini, Stolte, Le Brun
and J. Eisenberg under the terms of their respective employment
agreements. See the Grants of Plan-Based Awards Table for a
further discussion regarding the annual incentive payments. |
|
(4) |
|
The amounts set forth in the All Other Compensation
column are comprised of the following for each Named Executive
Officer: |
24
M. Eisenberg:
Perquisites and Personal Benefits:
2008: $13,350 for automobile allowance and $968 for payment of
life insurance premiums.
2007: $10,200 for automobile allowance and $782 for payment of
life insurance premiums.
2006: $9,350 for automobile allowance, $9,060 for reimbursement
for legal services and $894 for payment of life insurance
premiums.
Costantini:
Perquisites and Personal Benefits:
2008: $9,600 for automobile allowance and $692 for payment of
life insurance premiums.
2007: $9,600 for automobile allowance and $559 for payment of
life insurance premiums.
2006: $2,400 for automobile allowance and $106 for payment of
life insurance premiums.
Stolte:
Perquisites and Personal Benefits:
2008: $1,218 for payment of life insurance premiums.
2007: $539 for payment of life insurance premiums.
2006: $639 for payment of life insurance premiums.
Le
Brun:
Perquisites and Personal Benefits:
2008: $452 for payment of life insurance premiums.
J. Eisenberg:
Perquisites and Personal Benefits:
2008: $3,600 for automobile allowance and $7,760 for payment of
life insurance premiums.
2007: $14,400 for automobile allowance and $6,268 for payment of
life insurance premiums.
2006: $13,200 for automobile allowance and $7,162 for payment of
life insurance premiums.
25
Grants of
Plan-Based Awards in 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other
|
|
|
All Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
|
Option
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Estimated Future
|
|
|
Awards:
|
|
|
Awards:
|
|
|
|
|
|
Grant Date
|
|
|
|
|
|
|
|
|
|
|
|
Estimated Possible Payouts
|
|
|
Payouts Under
|
|
|
Number of
|
|
|
Number of
|
|
|
Exercise or
|
|
|
Fair Value of
|
|
|
|
|
|
|
|
|
|
|
|
Under Non-Equity Incentive
|
|
|
Equity Incentive Plan
|
|
|
Shares of
|
|
|
Securities
|
|
|
Base Price
|
|
|
Stock and
|
|
|
|
|
|
|
|
|
|
|
|
Plan Awards(3)
|
|
|
Awards(4)(5)
|
|
|
Stock or
|
|
|
Underlying
|
|
|
of Option
|
|
|
Option
|
|
|
|
Award
|
|
|
Committee
|
|
|
|
|
Threshold
|
|
|
Target
|
|
|
Maximum
|
|
|
Threshold
|
|
|
Target/Maximum
|
|
|
Units
|
|
|
Options
|
|
|
Awards
|
|
|
Awards(6)
|
|
Name
|
|
Date(1)
|
|
|
Date(2)
|
|
|
Award Type
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
(#)
|
|
|
(#)
|
|
|
(#)
|
|
|
(#)
|
|
|
($/Sh)
|
|
|
($)
|
|
|
Marc Eisenberg
|
|
|
3/31/2008
|
|
|
|
3/31/2008
|
|
|
Time-based SARs
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
425,000(7
|
)
|
|
$
|
4.96
|
|
|
$
|
964,750
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Adjusted EBITDA)
|
|
|
26,280
|
|
|
|
116,800
|
|
|
|
204,400
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Net satellite subscriber additions)
|
|
|
13,140
|
|
|
|
58,400
|
|
|
|
102,200
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Revenues)
|
|
|
13,140
|
|
|
|
58,400
|
|
|
|
102,200
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Net terrestrial additions)
|
|
|
3,285
|
|
|
|
14,600
|
|
|
|
25,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (certain operational target: #1)
|
|
|
|
|
|
|
29,200
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (certain operational target: #2)
|
|
|
|
|
|
|
14,600
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs (Adjusted EBITDA)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,533
|
|
|
|
18,667
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
89,788
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs (Net satellite subscriber additions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,613
|
|
|
|
7,467
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
35,916
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs (Revenues)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,267
|
|
|
|
9,333
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
44,892
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs (Net terrestrial additions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
653
|
|
|
|
1,867
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,980
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based SARs (Adjusted EBITDA)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7,583
|
|
|
|
21,667
|
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
21,234
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based SARs (Net satellite subscriber additions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,033
|
|
|
|
8,667
|
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
8,494
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based SARs (Revenues)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,792
|
|
|
|
10,833
|
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
10,616
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based SARs (Net terrestrial additions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
758
|
|
|
|
2,167
|
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
2,124
|
|
Robert Costantini
|
|
|
3/31/2008
|
|
|
|
3/31/2008
|
|
|
Time-based SARs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
250,000(7
|
)
|
|
|
4.96
|
|
|
|
567,500
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Adjusted EBITDA)
|
|
|
22,963
|
|
|
|
102,060
|
|
|
|
178,605
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Net satellite subscriber additions)
|
|
|
10,206
|
|
|
|
45,360
|
|
|
|
79,380
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Revenues)
|
|
|
10,206
|
|
|
|
45,360
|
|
|
|
79,380
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Net terrestrial additions)
|
|
|
2,551
|
|
|
|
11,340
|
|
|
|
19,845
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (certain operational target: #1)
|
|
|
|
|
|
|
22,680
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs (Adjusted EBITDA)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
680
|
|
|
|
1,944
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,351
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs (Net satellite subscriber additions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
272
|
|
|
|
778
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,742
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs (Revenues)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
340
|
|
|
|
972
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,675
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs ( Net terrestrial additions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
68
|
|
|
|
194
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
933
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based SARs (Adjusted EBITDA)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,889
|
|
|
|
11,111
|
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
10,889
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based SARs (Net satellite subscriber additions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,555
|
|
|
|
4,444
|
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
4,355
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based SARs (Revenues)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,945
|
|
|
|
5,556
|
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
5,445
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based SARs (Net terrestrial additions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
389
|
|
|
|
1,111
|
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
1,089
|
|
|
|
|
2/29/2008
|
|
|
|
2/29/2008
|
|
|
Time-based RSUs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100,000(8
|
)
|
|
|
|
|
|
|
|
|
|
|
570,000
|
|
John J. Stolte, Jr.
|
|
|
3/31/2008
|
|
|
|
3/31/2008
|
|
|
Time-based SARs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
150,000(7
|
)
|
|
|
4.96
|
|
|
|
340,500
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Adjusted EBITDA)
|
|
|
3,544
|
|
|
|
17,719
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Net satellite subscriber additions)
|
|
|
3,544
|
|
|
|
17,719
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
26
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other
|
|
|
All Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
|
Option
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Estimated Future
|
|
|
Awards:
|
|
|
Awards:
|
|
|
|
|
|
Grant Date
|
|
|
|
|
|
|
|
|
|
|
|
Estimated Possible Payouts
|
|
|
Payouts Under
|
|
|
Number of
|
|
|
Number of
|
|
|
Exercise or
|
|
|
Fair Value of
|
|
|
|
|
|
|
|
|
|
|
|
Under Non-Equity Incentive
|
|
|
Equity Incentive Plan
|
|
|
Shares of
|
|
|
Securities
|
|
|
Base Price
|
|
|
Stock and
|
|
|
|
|
|
|
|
|
|
|
|
Plan Awards(3)
|
|
|
Awards(4)(5)
|
|
|
Stock or
|
|
|
Underlying
|
|
|
of Option
|
|
|
Option
|
|
|
|
Award
|
|
|
Committee
|
|
|
|
|
Threshold
|
|
|
Target
|
|
|
Maximum
|
|
|
Threshold
|
|
|
Target/Maximum
|
|
|
Units
|
|
|
Options
|
|
|
Awards
|
|
|
Awards(6)
|
|
Name
|
|
Date(1)
|
|
|
Date(2)
|
|
|
Award Type
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
(#)
|
|
|
(#)
|
|
|
(#)
|
|
|
(#)
|
|
|
($/Sh)
|
|
|
($)
|
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Revenues)
|
|
|
4,430
|
|
|
|
22,148
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Net terrestrial additions)
|
|
|
886
|
|
|
|
4,430
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Annual incentive (certain operational target: #1)
|
|
|
|
|
|
|
17,719
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Annual incentive (certain operational target: #3)
|
|
|
|
|
|
|
26,578
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Annual incentive (certain operational target: #4)
|
|
|
|
|
|
|
26,578
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Annual incentive (certain operational target: #5)
|
|
|
|
|
|
|
17,719
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Annual incentive (certain operational target: #6)
|
|
|
|
|
|
|
26,578
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Christian Le Brun
|
|
|
3/31/2008
|
|
|
|
3/31/2008
|
|
|
Time-based SARs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
150,000(7
|
)
|
|
|
4.96
|
|
|
|
340,500
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Adjusted EBITDA)
|
|
|
9,058
|
|
|
|
45,293
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Net satellite subscriber additions)
|
|
|
4,831
|
|
|
|
24,156
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Revenues)
|
|
|
6,039
|
|
|
|
30,195
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Net terrestrial additions)
|
|
|
1,208
|
|
|
|
6,039
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (certain operational operational target: #1)
|
|
|
|
|
|
|
15,097
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (certain operational target: #7)
|
|
|
|
|
|
|
15,097
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (certain operational target: #8)
|
|
|
|
|
|
|
15,097
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs (Adjusted EBITDA)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
817
|
|
|
|
2,334
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11,227
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs (Net satellite subscriber additions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
327
|
|
|
|
933
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,488
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs (Revenues)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
408
|
|
|
|
1,167
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,613
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs (Net terrestrial additions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
82
|
|
|
|
233
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,121
|
|
Jerome B. Eisenberg
|
|
|
3/31/2008
|
|
|
|
3/31/2008
|
|
|
Time-based SARs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100,000(7
|
)
|
|
|
4.96
|
|
|
|
227,000
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Adjusted EBITDA)
|
|
|
3,994
|
|
|
|
17,750
|
|
|
|
31,063
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Net satellite subscriber Additions)
|
|
|
1,598
|
|
|
|
7,100
|
|
|
|
12,425
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Revenues)
|
|
|
1,997
|
|
|
|
8,875
|
|
|
|
15,531
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (Net terrestrial additions)
|
|
|
400
|
|
|
|
1,775
|
|
|
|
3,106
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (certain operational target: #8)
|
|
|
|
|
|
|
8,875
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (certain operational target: #9)
|
|
|
|
|
|
|
10,650
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (certain operational target: #10)
|
|
|
|
|
|
|
8,875
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/6/2008
|
|
|
|
3/6/2008
|
|
|
Annual incentive (certain operational target: #11)
|
|
|
|
|
|
|
7,100
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs (Adjusted EBITDA)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,711
|
|
|
|
24,889
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
119,716
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs ( Net satellite subscriber additions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,485
|
|
|
|
9,956
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
47,888
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs (Revenues)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,356
|
|
|
|
12,445
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
59,860
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based RSUs (Net terrestrial additions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
871
|
|
|
|
2,489
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11,972
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based SARs (Adjusted EBITDA)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,750
|
|
|
|
25,000
|
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
24,500
|
|
27
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other
|
|
|
All Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
|
Option
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Estimated Future
|
|
|
Awards:
|
|
|
Awards:
|
|
|
|
|
|
Grant Date
|
|
|
|
|
|
|
|
|
|
|
|
Estimated Possible Payouts
|
|
|
Payouts Under
|
|
|
Number of
|
|
|
Number of
|
|
|
Exercise or
|
|
|
Fair Value of
|
|
|
|
|
|
|
|
|
|
|
|
Under Non-Equity Incentive
|
|
|
Equity Incentive Plan
|
|
|
Shares of
|
|
|
Securities
|
|
|
Base Price
|
|
|
Stock and
|
|
|
|
|
|
|
|
|
|
|
|
Plan Awards(3)
|
|
|
Awards(4)(5)
|
|
|
Stock or
|
|
|
Underlying
|
|
|
of Option
|
|
|
Option
|
|
|
|
Award
|
|
|
Committee
|
|
|
|
|
Threshold
|
|
|
Target
|
|
|
Maximum
|
|
|
Threshold
|
|
|
Target/Maximum
|
|
|
Units
|
|
|
Options
|
|
|
Awards
|
|
|
Awards(6)
|
|
Name
|
|
Date(1)
|
|
|
Date(2)
|
|
|
Award Type
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
(#)
|
|
|
(#)
|
|
|
(#)
|
|
|
(#)
|
|
|
($/Sh)
|
|
|
($)
|
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based SARs (Net satellite subscriber additions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,500
|
|
|
|
10,000
|
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
9,800
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based SARs (Revenues)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,375
|
|
|
|
12,500
|
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
12,250
|
|
|
|
|
10/5/2006
|
|
|
|
3/6/2008
|
|
|
Performance-based SARs (Net terrestrial additions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
875
|
|
|
|
2,500
|
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
2,450
|
|
|
|
|
(1) |
|
The date the Compensation Committee approved the issuance of the
award. |
|
(2) |
|
For performance-based awards, the date the Compensation
Committee established the performance targets for the awards,
which is the date the award is considered granted for accounting
purposes. |
|
(3) |
|
The amounts shown represent annual incentive payments payable to
Messrs. M. Eisenberg, Costantini, Stolte, Le Brun and J.
Eisenberg pursuant to employment agreements with the Company.
See Certain Relationships and Transactions with Related
Persons Employment Agreements for a summary of
the employment agreements. The actual annual incentive payment
amount paid to each of these Named Executive Officers for fiscal
year 2008 is shown in the Summary Compensation Table under the
Non-Equity Incentive Plan Compensation column. For
2008, the incentive payment is a percentage of the
executives 2008 base salary, determined based on the
achievement of specified financial and operational performance
targets of the Company for fiscal year 2008. The amount shown in
the Target column represents the target annual
incentive payment for each eligible Named Executive Officer if
the performance targets are achieved at the 100% level. For
2008, the percentages of base salary payable as annual
incentives if the performance targets are achieved at the 100%
level were as follows: 80% for Messrs. M. Eisenberg and
Costantini, 75% for Messrs. Stolte and Le Brun and 80%
(prorated by 25% under the terms of his employment agreement)
for J. Eisenberg . The amount shown in the Maximum
column represents the maximum amount payable for each eligible
Named Executive Officer if the performance targets are achieved
above the 100% level. For 2008, the maximum percentages of base
salary payable as annual compensation were as follows: 140% for
Messrs. M. Eisenberg and Costantini and 140% (prorated by
25% under the terms of his employment agreement) for J.
Eisenberg. The amount shown in the Threshold column
represents the amount payable for each eligible Named Executive
Officer if the performance targets are achieved at the 90%
level, the minimum performance required for any annual incentive
payment to be made. For 2008, the threshold percentages of base
salary payable as annual compensation were as follows: 18% for
Messrs. M. Eisenberg and Costantini, 15% for
Messrs. Stolte and Le Brun and 18% (prorated by 25% under
the terms of his employment agreement) for J. Eisenberg if
certain operational and performance targets have been achieved.
Please see Compensation Discussion and
Analysis Elements of Compensation Annual
Cash Bonus for a further discussion regarding our annual
cash incentive payment programs. |
|
(4) |
|
On October 5, 2006, performance-based RSU awards and
performance-based SAR awards were issued under the 2006 LTIP
relating to the achievement of specified operational and
financial performance targets for fiscal years 2006, 2007 and
2008. Each RSU award represents the right to receive one share
of our common stock for each vested RSU and each SAR award
represents the right to receive, upon exercise of the SAR, the
value (payable in cash, stock or a combination of cash and stock
in our discretion) of the increase in the fair market value of a
specified number of shares of our common stock on the date of
exercise over the fair market value on the date of grant of the
SAR (the base price). The base price of $11.00 per
share of each SAR was equal to the price of our common stock
sold in our initial public offering in November 2006. See the |
28
|
|
|
|
|
Outstanding Equity Awards at Fiscal Year-End Table and the
related footnotes for additional information regarding these RSU
and SAR awards. The performance-based RSUs and SARs vest upon
achievement of various operational and financial performance
targets established for each of fiscal years 2006, 2007 and 2008
and continued employment through the dates that our Compensation
Committee has determined the performance targets have been
achieved. The operational and financial performance targets for
fiscal year 2008 were established in March 2008. Accordingly,
the performance-based RSUs and SARs that relate to those
performance targets were considered granted on that date for
accounting purposes and are shown in the table above. |
|
(5) |
|
The amounts shown in the Target/Maximum column
represent the target and maximum number of performance-based
RSUs or SARs which will vest under these awards if the
performance targets are achieved at or above the 100% level. The
amounts shown in the Threshold column represent the
minimum number of performance-based RSUs or SARs that will vest
under each award if the minimum level of performance is achieved
at the 90% level. For Messrs. M. Eisenberg, Costantini, Le
Brun and J. Eisenberg the minimum number represents 35% of the
target number of performance-based RSUs or SARs shown under the
Target column. See Compensation Discussion and
Analysis Elements of Compensation
Long-Term Equity-Based Incentives for a further discussion
regarding performance-based RSU and SAR. See the Outstanding
Equity Awards at Fiscal Year-End Table. |
|
(6) |
|
The amounts shown in the Grant Date Fair Value of Stock
and Option Awards column represent the full grant date
fair value of the awards computed in accordance with
SFAS 123(R). The grant date fair value of the time- and
performance-based RSUs shown in the table was $5.70 and $4.81
per share, respectively, based on the closing stock price of our
common stock on the date of grant. The grant date fair value of
the time- and performance-based SARs shown in the table was
estimated to be $2.27 and $0.98 per share, respectively. For a
discussion of valuation assumptions, see Note 5 to our
consolidated financial statements included in our Annual Report
of
Form 10-K
for the year ended December 31, 2008. |
|
(7) |
|
On March 31, 2008, an aggregate of 425,000, 250,000
150,000, 150,000 and 100,000 time-based SAR awards with a base
price of $4.96 per share, the price of our common stock on the
grant date, were granted to Messrs. M. Eisenberg,
Costantini, Stolte, Le Brun and J. Eisenberg, respectively. For
Mr. M. Eisenberg, 125,000 of these time-based SAR awards
vested on December 31, 2008 and the remaining 300,000
time-based SAR awards vest in two equal installments on
December 31, 2009 and 2010, subject to continued
employment. For Mr. Costantini, 50,000 of these time-based
SAR awards vested on December 31, 2008 and the remaining
200,000 time-based SAR awards vest in two equal installments on
December 31, 2009 and 2010, subject to continued
employment. For each of Messrs. Stolte and Le Brun 30,000
of these time-based SAR awards vested on December 31, 2008
and the remaining 120,000 time-based SAR awards vest in two
equal installments on December 31, 2009 and 2010, subject
to continued employment. For Mr. J. Eisenberg, 50,000 of
these time-based SAR awards vested on December 31, 2008 and
the remaining 50,000 time-based SAR awards vest in two equal
installments on December 31, 2009 and 2010, subject to
continued employment. See Compensation Discussion and
Analysis Elements of Compensation
Long-Term Equity-Based Incentives for a further discussion
regarding time-based SAR awards. See the Outstanding Equity
Awards at Fiscal Year-End Table and the related footnotes for
additional information regarding these SAR awards. |
|
(8) |
|
On February 29, 2008, 100,000 time-based RSU awards were
granted to Mr. Costantini, of which 40,000 time-based RSU
awards vested on December 31, 2008. The remaining 60,000
time-based RSU awards will vest in two equal installments on
December 31, 2009 and 2010, subject to continued
employment. See Compensation Discussion and
Analysis Elements of Compensation
Long-Term Equity-Based Incentives for a further discussion
regarding time-based RSU awards. See the Outstanding Equity
Awards at Fiscal Year-End Table and the related footnotes for
additional information regarding these RSU awards. |
29
Outstanding
Equity Awards at 2008 Fiscal Year-End
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option/SAR Awards
|
|
|
Stock Awards
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity Incentive
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Plan Awards:
|
|
|
|
|
|
|
|
|
|
Equity Incentive
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity Incentive
|
|
|
Market or
|
|
|
|
|
|
|
|
|
|
Plan Awards:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Plan Awards:
|
|
|
Payout Value of
|
|
|
|
Number of
|
|
|
Number of
|
|
|
Number of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Unearned
|
|
|
|
Securities
|
|
|
Securities
|
|
|
Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unearned
|
|
|
Shares, Units or
|
|
|
|
Underlying
|
|
|
Underlying
|
|
|
Underlying
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Market Value of
|
|
|
Shares, Units or
|
|
|
Other Rights
|
|
|
|
Unexercised
|
|
|
Unexercised
|
|
|
Unexercised
|
|
|
Option/SAR
|
|
|
|
|
|
Shares or units
|
|
|
Shares or Units
|
|
|
other Rights
|
|
|
Units or Other
|
|
|
|
Options/SARs
|
|
|
Options/SARs
|
|
|
Unearned
|
|
|
Exercise
|
|
|
Option/SAR
|
|
|
of stock that
|
|
|
of Stock that
|
|
|
that have not
|
|
|
That have not
|
|
|
|
(#)
|
|
|
(#)
|
|
|
Options/SARs
|
|
|
Price
|
|
|
Expiration
|
|
|
have not vested
|
|
|
have not Vested
|
|
|
Vested
|
|
|
Vested
|
|
Name
|
|
Exercisable
|
|
|
Unexercisable
|
|
|
(#)
|
|
|
($)
|
|
|
Date
|
|
|
(#)
|
|
|
($)(1)
|
|
|
(#)
|
|
|
($)(1)
|
|
|
Marc Eisenberg
|
|
|
146,667
|
(2)
|
|
|
|
|
|
|
|
|
|
$
|
2.33
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
$
|
|
|
|
|
|
|
|
$
|
|
|
|
|
|
33,334
|
(2)
|
|
|
|
|
|
|
|
|
|
|
2.33
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33,334
|
(2)
|
|
|
|
|
|
|
|
|
|
|
2.78
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33,334
|
(2)
|
|
|
|
|
|
|
|
|
|
|
3.38
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33,334
|
(2)
|
|
|
|
|
|
|
|
|
|
|
4.26
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,167
|
(3)
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,844
|
(3)
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,167
|
(3)
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
125,000
|
(3)
|
|
|
|
|
|
|
|
|
|
|
4.96
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
300,000
|
(3)(4)
|
|
|
|
|
|
|
4.96
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
21,667
|
(3)(5)
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,833
|
(3)(6)
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,667
|
(3)(7)
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,167
|
(3)(8)
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
37,334
|
(9)
|
|
|
80,641
|
(9)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
18,667
|
(10)
|
|
|
40,321
|
(10)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,333
|
(11)
|
|
|
20,159
|
(11)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7,467
|
(12)
|
|
|
16,129
|
(12)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,867
|
(13)
|
|
|
4,033
|
(13)
|
Robert G. Costantini
|
|
|
44,444
|
(3)
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
22,222
|
(3)
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14,444
|
(3)
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000
|
(3)
|
|
|
|
|
|
|
|
|
|
|
4.96
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
22,223
|
(3)(14)
|
|
|
|
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
200,000
|
(3)(4)
|
|
|
|
|
|
|
4.96
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11,111
|
(3)(5)
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,556
|
(3)(6)
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,444
|
(3)(7)
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,111
|
(3)(8)
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,889
|
(9)
|
|
|
8,400
|
(9)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
60,000
|
(15)
|
|
|
129,600
|
(15)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,944
|
(10)
|
|
|
4,199
|
(10)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
972
|
(11)
|
|
|
2,100
|
(11)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
778
|
(12)
|
|
|
1,680
|
(12)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
195
|
(13)
|
|
|
421
|
(13)
|
John J. Stolte, Jr.
|
|
|
11,667
|
(2)
|
|
|
|
|
|
|
|
|
|
|
2.33
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12,667
|
(2)
|
|
|
|
|
|
|
|
|
|
|
2.78
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13,334
|
(2)
|
|
|
|
|
|
|
|
|
|
|
3.38
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13,334
|
(2)
|
|
|
|
|
|
|
|
|
|
|
4.26
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
30,000
|
(3)
|
|
|
|
|
|
|
|
|
|
|
4.96
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
120,000
|
(3)(4)
|
|
|
|
|
|
|
4.96
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,223
|
(9)
|
|
|
43,682
|
(9)
|
|
|
|
|
|
|
|
|
Christian G. Le Brun
|
|
|
47,952
|
(2)
|
|
|
|
|
|
|
|
|
|
|
4.88
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
30,000
|
(3)
|
|
|
|
|
|
|
|
|
|
|
4.96
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,048
|
(2)(16)
|
|
|
|
|
|
|
4.88
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
120,000
|
(3)(4)
|
|
|
|
|
|
|
4.96
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,667
|
(9)
|
|
|
10,081
|
(9)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,334
|
(10)
|
|
|
5,041
|
(10)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,167
|
(11)
|
|
|
2,521
|
(11)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
933
|
(12)
|
|
|
2,015
|
(12)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
233
|
(13)
|
|
|
503
|
(13)
|
Jerome B. Eisenberg
|
|
|
166,667
|
(2)
|
|
|
|
|
|
|
|
|
|
|
2.33
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33,334
|
(2)
|
|
|
|
|
|
|
|
|
|
|
2.33
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33,334
|
(2)
|
|
|
|
|
|
|
|
|
|
|
2.78
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33,334
|
(2)
|
|
|
|
|
|
|
|
|
|
|
3.38
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33,334
|
(2)
|
|
|
|
|
|
|
|
|
|
|
4.26
|
|
|
|
2/17/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
18,500
|
(3)
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25,000
|
(3)
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,000
|
(3)
|
|
|
|
|
|
|
|
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000
|
(3)
|
|
|
|
|
|
|
|
|
|
|
4.96
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000
|
(3)(4)
|
|
|
|
|
|
|
4.96
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25,000
|
(3)(5)
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12,500
|
(3)(6)
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,000
|
(3)(7)
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,500
|
(3)(8)
|
|
|
11.00
|
|
|
|
10/5/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
49,778
|
(9)
|
|
|
107,520
|
(9)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24,889
|
(10)
|
|
|
53,760
|
(10)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12,445
|
(11)
|
|
|
26,881
|
(11)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,956
|
(12)
|
|
|
21,505
|
(12)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,488
|
(13)
|
|
|
5,374
|
(13)
|
30
|
|
|
(1) |
|
Based on the $2.16 per share closing price of our common stock
on December 31, 2008. |
|
(2) |
|
Options granted under our 2004 Stock Option Plan. |
|
(3) |
|
SAR awards granted under our 2006 LTIP. |
|
(4) |
|
Remaining time-based SAR awards that have a base price equal to
$4.96 per share, the price of our common stock on the grant
date. These time-based SAR awards vest in two equal installments
on December 31, 2009 and December 31, 2010. |
|
(5) |
|
Performance-based SAR awards that have a base price equal to
$11.00 per share, the price of our common stock sold in our
initial public offering in November 2006, and vested in March
2009 based on achieving the fiscal year 2008 target adjusted
EBITDA during fiscal year 2008 as determined by the Compensation
Committee. |
|
(6) |
|
Performance-based SAR awards that have a base price equal to
$11.00 per share, the price of our common stock sold in our
initial public offering in November 2006. 93.5% of these
performance-based SAR awards vested in March 2009 based on
achieving a percentage of the fiscal year 2008 target revenues
during fiscal year 2008 as determined by the Compensation
Committee and the remaining 6.50% of these performance-based SAR
awards lapsed unvested. |
|
(7) |
|
Performance-based SAR awards that have a base price equal to
$11.00 per share, the price of our common stock sold in our
initial public offering in November 2006, which lapsed unvested
in March 2009 based on not achieving the fiscal year 2008
target number of net satellite subscriber communicator additions
during fiscal year 2008 as determined by the Compensation
Committee. |
|
(8) |
|
Performance-based SAR awards that have a base price equal to
$11.00 per share, the price of our common stock sold in our
initial public offering in November 2006, which lapsed unvested
in March 2008 based on not achieving the fiscal year 2008
target number of net terrestrial subscriber additions during
fiscal year 2008 as determined by the Compensation Committee. |
|
(9) |
|
Time-based RSU awards that vested on January 1, 2009. |
|
(10) |
|
Performance-based RSU awards that vested in March 2009 based on
achieving the fiscal year 2008 target adjusted EBITDA during
fiscal year 2008 as determined by the Compensation Committee. |
|
(11) |
|
Performance-based RSU awards, of which 93.5% of these
performance-based RSU awards vested in March 2009 based on
achieving a percentage of the fiscal year 2008 target revenues
during fiscal year 2008 as determined by the Compensation
Committee and the remaining 6.5% of these performance-based RSU
awards lapsed unvested. |
|
(12) |
|
Performance-based RSU awards that lapsed unvested in March 2009
based on not achieving target number of net satellite subscriber
additions during fiscal year 2008 as determined by the
Compensation Committee. |
|
(13) |
|
Performance-based RSU awards that lapsed unvested in March 2009
based on not achieving target number of net terrestrial
subscriber additions during fiscal year 2008 as determined by
the Compensation Committee. |
|
(14) |
|
Time-based SAR awards that have a base price equal to $11.00 per
share, the price of our common stock sold in our initial public
offering in November 2006 that vested on January 1, 2009. |
|
(15) |
|
Remaining time-based RSU awards that vest in two equal
installments on December 31, 2009 and December 31,
2010. |
|
(16) |
|
Option award that vests in quarterly installments through
March 31, 2009. |
31
Option
Exercises and Stock Vested in 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
Stock Awards
|
|
|
|
Number of
|
|
|
|
|
|
Number of
|
|
|
|
|
|
|
Securities Acquired
|
|
|
Value Realized
|
|
|
Securities Acquired
|
|
|
Value Realized
|
|
|
|
on Exercise
|
|
|
on Exercise
|
|
|
on Vesting
|
|
|
on Vesting
|
|
Name
|
|
(#)
|
|
|
($)(1)
|
|
|
(#)(2)
|
|
|
($)(2)(3)
|
|
|
Marc Eisenberg
|
|
|
|
|
|
|
|
|
|
|
58,400
|
|
|
|
338,476
|
|
Robert G. Costantini
|
|
|
|
|
|
|
|
|
|
|
46,417
|
|
|
|
123,021
|
|
John J. Stolte, Jr.
|
|
|
|
|
|
|
|
|
|
|
20,222
|
|
|
|
123,961
|
|
Christian G. Le Brun
|
|
|
|
|
|
|
|
|
|
|
7,000
|
|
|
|
40,577
|
|
Jerome B. Eisenberg
|
|
|
|
|
|
|
|
|
|
|
67,711
|
|
|
|
400,232
|
|
|
|
|
(1) |
|
Represents the difference between the exercise price and the
fair market value of our common stock on the date of exercise. |
|
(2) |
|
Shares acquired on vesting of time-based RSU awards and vesting
of performance-based RSU awards based on achievement of
performance targets for fiscal year 2007. |
|
(3) |
|
Based on the closing price of our common stock on the vesting
date. |
32
EQUITY
COMPENSATION PLAN INFORMATION
The following table provides information, as of
December 31, 2008, about shares of our common stock that
may be issued upon the exercise or vesting of options, RSUs and
SARs granted to employees, consultants or directors under all of
our existing equity compensation plans.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(a)
|
|
|
(b)
|
|
|
(c)
|
|
|
|
Number of
|
|
|
|
|
|
Number of securities
|
|
|
|
securities to be
|
|
|
|
|
|
remaining available for
|
|
|
|
issued upon
|
|
|
|
|
|
future issuance under
|
|
|
|
exercise or vesting
|
|
|
Weighted-average
|
|
|
equity compensation
|
|
|
|
of outstanding
|
|
|
exercise price
|
|
|
plans (excluding
|
|
|
|
options, RSUs
|
|
|
of outstanding
|
|
|
securities reflected
|
|
Plan Category
|
|
and SARs
|
|
|
options and SARs
|
|
|
in column (a))
|
|
|
Equity compensation plans approved by stockholders(1)
|
|
|
2,688,958
|
(2)
|
|
$
|
5.15
|
(3)
|
|
|
2,136,541
|
(4)
|
Equity compensation plans not approved by stockholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
2,688,958
|
(2)
|
|
$
|
5.15
|
(3)
|
|
|
2,136,541
|
(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Consists of the following equity compensation plans: the 2004
Stock Option Plan and the 2006 LTIP. |
|
(2) |
|
Consists of 782,079 shares subject to outstanding stock
options under the 2004 Stock Option Plan and
1,433,566 shares underlying outstanding time- and
performance-based SARs and 473,313 shares underlying
outstanding time- and performance-based RSUs granted under the
2006 LTIP. |
|
(3) |
|
Excludes 473,313 shares underlying outstanding time- and
performance-based RSUs which do not have an exercise price. |
|
(4) |
|
Consists of shares available for issuance under the 2006 LTIP,
which includes the remaining 214,079 shares of common stock
available for issuance under the 2004 Stock Option Plan. |
33
CERTAIN
RELATIONSHIPS AND TRANSACTIONS WITH RELATED PERSONS
ORBCOMM
Europe
We have entered into a service license agreement covering 43
jurisdictions in Europe and a gateway services agreement with
ORBCOMM Europe LLC, a company in which we indirectly own a 25.5%
interest. The service license agreement and the gateway services
agreement with ORBCOMM Europe contain terms and conditions
substantially similar to the service license agreements and the
gateway services agreements we have and expect to enter into
with other licensees, except for certain more favorable pricing
terms. ORBCOMM Europe is owned 50% by Satcom and 50% by OHB
Technology A.G. (OHB Technology). We own a 52%
interest in Satcom. Subsequent to the acquisition of our 52%
interest in Satcom, Satcom and ORBCOMM Europe are consolidated
affiliates in our consolidated financial statements.
OHB Technology is a substantial stockholder and a direct
investor of ours and its Chief Executive Officer, Marco Fuchs,
is on our board of directors. In addition, Satcom has been
appointed by ORBCOMM Europe as a country representative for the
United Kingdom, Ireland and Switzerland. ORBCOMM Deutschland, an
affiliate of OHB Technology, has been appointed by ORBCOMM
Europe as country representative for Germany and holds the
relevant regulatory authority and authorization in Germany.
OHB-France, a subsidiary of OHB Technology, holds the regulatory
authority and authorization in France. In addition, ORBCOMM
Europe and Satcom have entered into an agreement obligating
ORBCOMM Europe to enter into a country representative agreement
for Turkey with Satcom, if the current country representative
agreement for Turkey expires or is terminated for any reason.
In connection with the organization of ORBCOMM Europe and the
reorganization of our business in Europe, we agreed to grant
ORBCOMM Europe approximately $3.7 million in air time
credits. The amount of the grant was equal to the amount owed by
ORBCOMM Global L.P. to the European Company for Mobile
Communications Services N.V. (MCS), the former
licensee for Europe of ORBCOMM Global L.P. ORBCOMM Europe, in
turn, agreed to issue credits in the aggregate amount of the
credits received from us to MCS and its country representatives
who were stockholders of MCS. Satcom, as a country
representative for the United Kingdom, Ireland and Switzerland,
received airtime credits in the amount of $580,200. ORBCOMM
Deutschland, as country representative for Germany, received
airtime credits of $449,800. Because approximately
$2.8 million of the airtime credits were granted to
stockholders of MCS who are not related to us and who continue
to be country representatives in Europe, we believe that
granting of the airtime credits was essential to permit ORBCOMM
Europe to reorganize the ORBCOMM business in Europe. The airtime
credits have no expiration date. As of December 31, 2008,
approximately $2.3 million of the airtime credits granted
by us to ORBCOMM Europe remained unused.
34
In 2006, we entered into agreements with ORBCOMM Europe for the
sale of a gateway earth station and related installation and
support services for an aggregate cost of approximately
$720,000. ORBCOMM Europe in turn entered into agreements to
resell the gateway earth station and installation and support
services to a third party for an aggregate of
2.6 million (approximately $3.8 million).
Installation of the gateway earth station was completed in
December 2007. In 2006, ORBCOMM Europe also entered into a
development agreement with Telematic Solutions SpA, an entity
owned 49% by the buyer of the gateway earth station and 51% by
OHB Teledata GmbH, a subsidiary of OHB Technology, for
1.6 million (approximately $2.4 million).
Satcom
International Group plc.
Satcom is our 52%-owned consolidated subsidiary that
(i) owns 50% of ORBCOMM Europe, (ii) has entered into
country representative agreements with ORBCOMM Europe, covering
the United Kingdom, Ireland and Switzerland, and (iii) has
entered into a service license agreement with us, covering
substantially all of the countries of the Middle East and a
significant number of countries of Central Asia, and a gateway
services agreement with us. In addition, ORBCOMM Europe and
Satcom have entered into an agreement obligating ORBCOMM Europe
to enter into a country representative agreement for Turkey with
Satcom, if the current country representative agreement for
Turkey expires or is terminated for any reason. We believe that
the service license agreement and the gateway services agreement
between us and Satcom contain terms and conditions substantially
similar to those which we have and expect to enter into with
other unaffiliated licensees. As of December 31, 2008,
Satcom owed us unpaid fees of approximately $66,000.
We acquired our 52% interest in Satcom from Jerome Eisenberg,
our Chairman of the Board and former Chief Executive Officer,
and Don Franco, a former officer of ours, who, immediately prior
to the October 2005 reorganization of Satcom, together owned
directly or indirectly a majority of the outstanding voting
shares of Satcom and held a substantial portion of the
outstanding debt of Satcom. On October 7, 2005, pursuant to
a contribution agreement entered into between us and
Messrs. Eisenberg and Franco in February 2004, we acquired
all of their interests in Satcom in exchange for (1) an
aggregate of 620,000 shares of our Series A preferred
stock and (2) a contingent cash payment in the event of our
sale or initial public offering. The contribution agreement was
entered into in connection with our February 2004 reorganization
in order to eliminate any potential conflict of interest between
us and Messrs. Eisenberg and Franco, in their capacities as
officers of ours. The contingent payment would equal
$2 million, $3 million or $6 million in the event
the proceeds from our sale or the valuation in our IPO exceeded
$250 million, $300 million or $500 million,
respectively, subject to proration for amounts that fell in
between these thresholds. On November 8, 2006, upon
completion of our IPO, we made a contingent payment of
approximately $3.6 million. Immediately prior to, and as a
condition to the closing of, the Satcom acquisition, Satcom and
certain of its stockholders and noteholders consummated a
reorganization transaction whereby 95% of the outstanding
principal of demand notes, convertible notes and certain
contract debt was converted into equity, and accrued and unpaid
interest on such demand and convertible notes was acknowledged
to have been previously released. This reorganization included
the conversion into equity of the demand notes and convertible
notes of Satcom held by Messrs. Eisenberg and Franco in the
principal amounts of approximately $50,000 and $6,250,800,
respectively, and the release of any other debts of Satcom owed
to them.
As of December 31, 2008, ORBCOMM Europe had a note payable
to Satcom in the amount of 1,466,920 ($2,068,731). This
note has the same payment terms as the note payable from ORBCOMM
Europe to OHB Technology described below under
OHB Technology A.G. and carries a zero
interest rate. For accounting purposes, this note has been
eliminated in the consolidation of ORBCOMM Europe and Satcom
with ORBCOMM Inc. We own 52% of Satcom, which in turn owns 50%
of ORBCOMM Europe.
We have provided Satcom with a $1.0 million line of credit
for working capital purposes pursuant to a revolving note dated
as of December 30, 2005. The revolving loan bears interest
at 8% per annum and was originally scheduled to mature on
December 30, 2006, and is secured by all of Satcoms
assets, including its membership interest in ORBCOMM Europe. As
of December 31, 2008, Satcom had $780,589 outstanding under
this line of credit. On March 30, 2009, we extended the
maturity date to December 31, 2009.
35
OHB
Technology A.G.
On May 21, 2002, we entered into an IVAR agreement with OHB
Technology (formerly known as OHB Teledata A.G.) whereby OHB
Technology has been granted non-exclusive rights to resell our
services for applications developed by OHB Technology for the
monitoring and tracking of mobile tanks and containers. As of
December 31, 2008, OHB Technology did not owe us any unpaid
service fees.
In an unrelated transaction, on March 10, 2005, we entered
into an ORBCOMM concept demonstration satellite bus, integration
test and launch services procurement agreement with OHB-System
AG (an affiliate of OHB Technology), whereby OHB-System AG will
provide us with overall concept demonstration satellite design,
bus module and payload module structure manufacture, payload and
bus module integration, assembled satellite environmental tests,
launch services and on-orbit testing of the bus module for the
Concept Validation Project.
In connection with the acquisition of an interest in Satcom (see
Satcom International Group plc. above),
we recorded an indebtedness to OHB Technology arising from a
note payable from ORBCOMM Europe to OHB Technology. At
December 31, 2008 the principal balance of the note payable
is 1,138,410 ($1,604,803) and it has a carrying value of
$1,244,000. This note does not bear interest and has no fixed
repayment term. Repayment will be made from the distribution
profits (as defined in the note agreement) of ORBCOMM Europe.
The note has been classified as long-term and we do not expect
any repayments to be required prior to December 31, 2009.
On June 5, 2006, we entered into an agreement with
OHB-System AG, an affiliate of OHB Technology, to design,
develop and manufacture for us six satellite buses, integrate
such buses with the payloads to be provided by Orbital Sciences
Corporation, and launch the six integrated satellites to
complete our quick-launch program. The original
price for the six satellite buses and related integration and
launch services was $20 million and payments under the
agreement were due upon specific milestones achieved by
OHB-System AG.
On July 2, 2008, we and OHB-System, AG entered into an
agreement to amend the June 5, 2006 agreement in connection
with the successful launch of the Coast Guard demonstration
satellite and the five quick-launch satellites on June 19,
2008. Pursuant to the agreement, we and OHB System, AG agreed to
a revised schedule of milestone and related payments for the
launch of the five quick-launch satellites and delivery schedule
of the sixth quick-launch satellite, with no modification to the
price in the agreement entered into on June 5, 2006,
including certain launch support and in-orbit testing services
for the sixth quick-launch satellite. In addition, we agreed to
pay an additional $450,000 to OHB-System, AG relating to the
construction of the five quick-launch satellites. We and
OHB-System, AG have also agreed to waive any applicable on-time
delivery incentive payments and to waive any applicable
liquidated damages, except for any liquidated damages with
respect to delivery delay of the sixth quick-launch satellite.
As of December 31, 2008, we have made milestone payments
aggregating $17.8 million under this agreement. In
addition, OHB System, AG will provide services relating to the
development, demonstration and launch of our next-generation
satellites at a total cost of $1.35 million.
In 2006, ORBCOMM Europe also entered into a development
agreement with Telematic Solutions SpA, an entity owned 49% by
the buyer of a gateway earth station described above under
ORBCOMM Europe and 51% by OHB Teledata
GmbH, a subsidiary of OHB Technology, for 1.6 million
(approximately $2.4 million).
Registration
Rights Agreement
On December 30, 2005, and in connection with private
placements of Series B convertible preferred stock in
November and December 2005 and January 2006, we entered into a
Second Amended and Restated Registration Rights Agreement with
the Series B preferred stock investors and holders of our
Series A preferred stock and common stock who were parties
to the Amended and Restated Registration Rights Agreement dated
February 17, 2004.
36
Under the agreement, certain holders of common stock (including
common stock issued upon the conversion of Series A
convertible preferred stock and Series B convertible
preferred stock) have the right to demand, at any time or from
time to time, that we file up to two registration statements
registering the common stock. Only holders of (i) at least
two-thirds of the registrable securities (generally our common
stock and common stock issued upon conversion of our preferred
stock and warrants) outstanding as of the date of our initial
public offering, (ii) at least 35% of the registrable
securities outstanding as of the date of the demand or
(iii) a specified number of holders of common stock issued
upon conversion of our Series B convertible preferred stock
may request a demand registration.
In addition, certain holders will be entitled to an additional
demand registration statement on
Form S-3
covering the resale of all registrable securities, provided that
we will not be required to effect more than one such demand
registration statement on
Form S-3
in any twelve month period or to effect any such demand
registration statement on
Form S-3
if any such demand registration statement on
Form S-3
will result in an offering price to the public of less than
$20 million. Notwithstanding the foregoing, after we
qualify to register our common stock on
Form S-3,
Sagamore Hill Hub Fund Ltd. and its affiliates
(collectively, Sagamore) and PCG Satellite
Investments, LLC, CALPERS/PCG Corporate Partners, LLC and their
affiliates (the PCG Entities) will have separate
rights to additional demand registrations that would be eligible
for registration on
Form S-3;
provided, that we will not be required to effect more than one
such demand registration requested by Sagamore or the PCG
Entities, as the case may be, on
Form S-3
in any twelve month period and that Sagamore or the PCG
Entities, as the case may be, will pay the expenses of such
registration if such registration shall result in an aggregate
offering price to the public of less than $1 million.
Certain investors also have preemptive rights and piggyback
registration rights as specified in our Second Amended and
Restated Registration Rights Agreement.
Employment
Agreements
Marc Eisenberg. On February 21, 2008, we
entered into an employment agreement with Marc Eisenberg to
serve as our Chief Executive Officer effective as of
March 31, 2008. Upon its effectiveness, the agreement
superseded and replaced any prior employment agreements with
Marc Eisenberg (except for any of his obligations applicable to
the period prior to March 31, 2008) and expires on
December 31, 2010, unless terminated earlier pursuant to
the terms of the agreement. The agreement may be extended by
mutual agreement of the parties. Upon the expiration of the
agreements term, and any extension thereof,
Mr. Eisenberg will continue to be employed on an at
will basis.
The agreement provides for an annual base salary of $365,000. In
addition to his salary, Mr. Eisenberg is entitled to
certain employee benefits, including medical and disability
insurance, term life insurance, paid holiday and vacation time
and other employee benefits paid by us. Mr. Eisenberg is
eligible to receive a bonus, payable in cash or cash
equivalents, based on a percentage of his base salary (ranging
from 18% to 140%) dependent upon achieving 90% to 133% of
certain performance targets established each year by the board
of directors. No annual incentive bonus would be paid under the
agreement relating to certain operational and financial
performance targets unless at least 90% of the applicable
performance targets established by the Compensation Committee
for that fiscal year are met or exceeded. Mr. Eisenberg
will be entitled to participate in any profit sharing
and/or
pension plan generally provided for our executives, and in any
equity option plan or restricted equity plan established by us
in which our senior executives are generally permitted to
participate.
In addition, under the agreement, we issued to
Mr. Eisenberg on March 31, 2008 an award of 425,000
time-based SAR awards. Upon the exercise of a SAR award, we will
deliver cash, shares of common stock valued at fair market value
on the date of exercise or a combination of cash and shares of
common stock, as the Compensation Committee may determine. The
time-based SAR awards have a base price equal to $4.96 per
share, the fair market value of our common stock on the date of
grant. Under the terms of the SAR award, 125,000 SARs vested on
December 31, 2008, 150,000 SARs will vest on
December 31, 2009 and 150,000 SARs will vest on
December 31, 2010.
37
In addition, under his previous employment agreement, we issued
Mr. Eisenberg awards consisting of 224,000 RSUs and 130,000
SARs in October 2006. The RSUs will be payable only in shares of
our common stock and the SARs have a base price equal to $11.00
per share, (the initial public offering price of our common
stock in November 2006). One half of the RSUs consist of
time-based awards that vested in three equal installments on
January 1, 2007 and 2008 and 2009. The remaining RSUs and
all the SARs consist of performance-based awards which vest in
three equal installments in 2007, 2008 and 2009 on the
achievement of certain performance targets, for each of fiscal
years 2006, 2007 and 2008, established each year by the board of
directors or the Compensation Committee.
In March 2009, our Compensation Committee determined that
Mr. Eisenbergs performance-based annual incentive
awards relating to (1) fiscal year 2008 target adjusted
EBITDA had been earned based on achieving the target amount
during 2008, (2) fiscal year 2008 target revenues were
earned by Mr. Eisenberg at a 93.5% payout based on
achieving 99% of the target amount during 2008, (3) certain
fiscal year 2008 operational targets were earned based on
achieving the targets during 2008, (4) fiscal year 2008
target net satellite subscriber additions were not earned based
on not achieving at least 90% of the target during 2008 and
(5) fiscal year 2008 target net terrestrial subscriber
additions were not earned based on not achieving at lease 90% of
the target during 2008.
In March 2009, our Compensation Committee determined that both
the performance-based SAR and RSU awards granted to
Mr. Eisenberg relating to (1) fiscal year 2008 target
adjusted EBITDA vested based on achieving the target amount
during 2008, (2) fiscal year 2008 target revenues vested at
a 93.5% level based on achieving 99% of the target amount during
2008, (3) fiscal year 2008 target net satellite subscriber
additions lapsed unvested based on not achieving at least 90% of
the target during 2008 and (4) fiscal year 2008 target net
terrestrial subscriber additions lapsed unvested based on not
achieving at least 90% of the target during 2008.
If Mr. Eisenbergs employment is terminated by us
without cause (as defined in the agreement) or by
him due to a material change in his status, title, position or
scope of authority or responsibility during the term of the
agreement, or any extension thereof, he is entitled to continue
to receive his base salary and continued health insurance
coverage for one year immediately following such termination.
Mr. Eisenbergs post-termination payments are
conditioned on his executing a release in favor of us. In
addition, the agreement contains standard covenants relating to
confidentiality and assignment of intellectual property rights,
a two-year
post-employment non-solicitation covenant and a one-year
post-employment non-competition covenant. Upon a termination of
employment following a change of control (as defined
in the agreement), Mr. Eisenberg will be entitled to the
same post-employment payments as if his employment were
terminated by us without cause (as described above),
unless the successor or transferee company continues his
employment on substantially equivalent terms as under the
agreement; provided that if the change of control
transaction occurs, then the length of the severance period
during which Mr. Eisenberg receives continued base salary
and coverage under our health insurance plan will be the longer
of one year immediately following the employment termination
date or the remainder of the term of the agreement at the time
the employment termination occurs.
Robert G. Costantini. On February 21,
2008, we entered into an employment agreement with Robert
G. Costantini, our Executive Vice President and Chief
Financial Officer, effective as of March 31, 2008. Upon its
effectiveness, the agreement superseded and replaced any
previous employment agreements with Mr. Costantini (except
for any of his obligations applicable to the period prior to
March 31, 2008) and expires on December 31, 2010,
unless terminated earlier pursuant to the terms of the
agreement. The agreement may be extended by mutual agreement of
the parties. Upon the expiration of the agreements term,
and any extension thereof, Mr. Costantini will continue to
be employed on an at will basis.
The agreement provides for an annual base salary of $283,500. In
addition to his salary, Mr. Costantini is entitled to
certain employee benefits, including medical and disability
insurance, term life insurance, paid holiday and vacation time
and other employee benefits paid by us. Mr. Costantini is
eligible to receive a bonus, beginning with 2008 fiscal year,
payable in cash or cash equivalents, based on a percentage of
his base salary (ranging from 18% to 140%) dependent upon
achieving 90% to 133% of certain performance targets
38
established each year by the board of directors. No annual
incentive bonus would be paid under the agreement relating to
certain operational and financial performance targets unless at
least 90% of the applicable performance targets established by
the Compensation Committee for that fiscal year are met or
exceeded. Mr. Costantini is entitled to participate in any
profit sharing
and/or
pension plan generally provided for our executives, and in any
equity option plan or restricted equity plan established by us
in which our senior executives are generally permitted to
participate.
In addition, under the agreement, we issued to
Mr. Costantini on March 31, 2008 an award consisting
of 250,000 time-based SARs. Upon the exercise of a SAR award, we
will deliver cash, shares of common stock valued at fair market
value on the date of exercise or a combination of cash and
shares of common stock, as the Compensation Committee may
determine. The SARs have a base price equal to $4.96 per share,
the fair market value of our common stock on the date of grant.
Under the terms of the SAR award, 50,000 SARs vested on
December 31, 2008, 100,000 SARs will vest on
December 31, 2009 and 100,000 SARs will vest on
December 31, 2010.
In addition, under his previous employment agreement, we issued
to Mr. Costantini awards consisting of 23,333 RSUs and
133,333 SARs. The RSUs will be payable only in shares of our
common stock and the SARs will have a base price equal to $11.00
per share, (the initial public offering price of our common
stock in November, 2006). One half of the RSUs and one half of
the SARs consist of time-based awards which vest in three equal
installments on January 1, 2007, 2008 and 2009. The
remaining RSUs and SARs consist of performance-based awards
which vest in three equal installments in 2007, 2008 and 2009 on
the achievement of certain performance targets, for each of
fiscal years 2006, 2007 and 2008, established each year by the
board of directors or the Compensation Committee.
In March 2009, our Compensation Committee determined that
Mr. Costantinis performance-based annual incentive
awards relating to (1) fiscal year 2008 target adjusted
EBITDA had been earned based on achieving the target amount
during 2008, (2) fiscal year 2008 target revenues were
earned by Mr. Costantini at a 93.5% payout based on
achieving 99% of the target amount during 2008, (3) certain
fiscal year 2008 operational target was earned based on
achieving the target during 2008, (4) fiscal year 2008
target net satellite subscriber additions were not earned based
on not achieving at least 90% of the target during 2008 and
(5) fiscal year 2008 target net terrestrial subscriber
additions were not earned based on not achieving at least 90% of
the target during 2008.
In March 2009, our Compensation Committee determined that both
the performance-based SAR and RSU awards granted to
Mr. Costantini relating to (1) fiscal year 2008 target
adjusted EBITDA vested based on achieving the target amount
during 2008, (2) fiscal year 2008 target revenues vested at
a 93.5% level based on achieving 99% of the target amount during
2008, (3) fiscal year 2008 target net satellite subscriber
additions lapsed unvested based on not achieving at least 90% of
the target during 2008 and (4) fiscal year 2008 target net
terrestrial subscriber additions lapsed unvested based on not
achieving at least 90% of the target during 2008.
If Mr. Costantinis employment is terminated by us
without cause (as defined in the agreement) or by
him due to a material change in his status, title, position or
scope of authority or responsibility during the term of the
agreement, or any extension thereof, he is entitled to continue
to receive his base salary and continued health insurance
coverage for one year immediately following such termination.
Mr. Costantinis post-termination payments are
conditioned on his executing a release in favor of us. In
addition, the agreement contains standard covenants relating to
confidentiality and assignment of intellectual property rights,
a two-year post-employment non-solicitation covenant and a
one-year post-employment non-competition covenant. Upon a
termination of his employment following a change of
control (as defined in the agreement), Mr. Costantini
will be entitled to the same post-employment payments as if his
employment were terminated by the Company without
cause (as described above), unless the successor or
transferee company continues his employment on substantially
equivalent terms as under his agreement; provided that if the
change of control transaction occurs, then the
length of the severance period during which Mr. Costantini
receives continued base salary and coverage under our health
insurance plan will be the longer of one year
39
immediately following the employment termination date or the
remainder of the term of the agreement at the time the
employment termination occurs.
John J. Stolte, Jr. On February 21,
2008, we entered into an employment agreement with John Stolte,
to serve as our Executive Vice President Technology
and Operations, effective as of March 31, 2008. Upon its
effectiveness, the agreement superseded and replaced any
previous employment agreements with Mr. Stolte (except for
any of his obligations applicable to the period prior to
March 31, 2008) and expires on December 31, 2010,
unless terminated earlier pursuant to its terms. The agreement
may be extended by mutual agreement of the parties. Upon the
expiration of the agreements term, and any extension
thereof, Mr. Stolte will continue to be employed on an
at will basis.
Mr. Stoltes agreement provides for an annual base
salary of $236,250. In addition to his salary, Mr. Stolte
is entitled to certain employee benefits, including medical and
disability insurance, term life insurance, paid holiday and
vacation time and other employee benefits paid by us.
Mr. Stolte is eligible to receive a bonus based on a
percentage of his base salary (up to 75%) dependent upon
achieving certain performance targets established each year by
the board of directors. Mr. Stolte is entitled to
participate in any profit sharing
and/or
pension plan generally provided for our executives, and in any
equity option plan or restricted equity plan established by us
in which our executives are generally permitted to participate.
In addition, under the agreement, we issued to Mr. Stolte
on March 31, 2008 an award consisting of 150,000 time-based
SARs. Upon the exercise of a SAR award, we will deliver cash,
shares of common stock valued at fair market value on the date
of exercise or a combination of cash and shares of common stock,
as the Compensation Committee may determine. The SARs have a
base price equal to $4.96 per share, the fair market value of
our common stock on the date of grant. Under the terms of the
SAR award, 30,000 SARs vested on December 31, 2008, 60,000
SARs will vest on December 31, 2009 and 60,000 SARs will
vest on December 31, 2010.
In addition, under his previous employment agreement, we issued
to Mr. Stolte 121,333 RSUs. These RSUs will be payable only
in shares of our common stock . One half of the RSUs consist of
time-base awards that vested in three equal installments: the
first two installments vested on May 21, 2008 and
May 21, 2007 and the last installment vested on
January 1, 2009. The remaining RSUs consist of
performance-based awards which would vest based on achieving
certain operational targets by specified dates.
In March 2009, the Compensation Committee determined that
Mr. Stoltes performance-based annual incentive awards
relating to certain fiscal year 2008 operational targets were
not earned based on not achieving the targets during 2008.
If Mr. Stoltes employment is terminated by reason of
his death or disability, or by us without cause (as
defined in the agreement) during the term of the agreement, or
any extension thereof, he or his estate is entitled to continue
to receive his then current base salary for one year immediately
following such termination. Mr. Stoltes
post-termination payments are conditioned on his executing a
release in favor of us. In addition, the agreement contains
standard covenants relating to confidentiality and assignment of
intellectual property rights, a two-year post-employment
non-solicitation covenant and a one-year post-employment
non-competition covenant. Upon a termination of his employment
following a change of control (as defined in the
agreement), Mr. Stolte will be entitled to the same
post-employment payments as if his employment were terminated by
us without cause (as described above), unless the
successor or transferee company continues his employment on
substantially equivalent terms as under the agreement.
Christian G. Le Brun. On February 21,
2008, we entered into an employment agreement with
Christian G. Le Brun to serve as our General Counsel
and Executive Vice President effective as of March 31,
2008. The employment agreement expires on December 31, 2010
unless terminated earlier pursuant to the terms of the
agreement. The agreement may be extended by mutual agreement of
the parties. Upon the expiration of the agreements term,
and any extension thereof, Mr. Le Brun will continue to be
employed on an at will basis.
Mr. Le Bruns employment agreement provides for an
annual base salary of $201,300. In addition to his salary,
Mr. Le Brun is entitled to certain employee benefits,
including medical and disability insurance, term
40
life insurance, paid holiday and vacation time and other
employee benefits paid by us. Mr. Le Brun is eligible to
receive a bonus based on a percentage of his base salary (up to
75%) dependent upon achieving certain performance targets
established each year by the board of directors. Mr. Le
Brun is entitled to participate in any profit sharing
and/or
pension plan generally provided for our executives, and in any
equity option plan or restricted equity plan established by us
in which our executives are generally permitted to participate.
In addition, under Mr. Le Bruns employment agreement,
we issued on March 31, 2008 an award consisting of 150,000
time-based SARs. Upon the exercise of a SAR award, we will
deliver cash, shares of common stock valued at fair market value
on the date of exercise or a combination of cash and shares of
common stock, as the Compensation Committee may determine. The
SARs have a base price equal to $4.96 per share, the fair market
value of our common stock on the date of grant. Under the terms
of the SAR award, 30,000 SARs vested on December 31, 2008,
60,000 SARs will vest on December 31, 2009 and 60,000 SARs
will vest on December 31, 2010.
In March 2009, our Compensation Committee determined that
Mr. Le Bruns performance-based annual incentive
awards relating to (1) fiscal year 2008 target adjusted
EBITDA had been earned based on achieving the target amount
during 2008, (2) fiscal year 2008 target revenues were
earned by Mr. Le Brun at a 93.5% payout based on achieving
99% of the target amount during 2008, (3) fiscal year 2008
target net satellite subscriber additions were not earned based
on not achieving at least 90% of the target during 2008,
(4) fiscal year 2008 target net terrestrial subscriber
additions were not earned based on not achieving at least 90% of
the target during 2008 and (5) certain fiscal year 2008
operational targets were not earned based on not achieving the
targets during 2008.
In March 2009, our Compensation Committee determined that
Mr. Le Bruns performance-based RSU awards relating to
(1) fiscal year 2008 target adjusted EBITDA vested based on
achieving the target amount during 2008, (2) fiscal year
2008 target revenues vested at a 93.5% level based on achieving
99% of the target amount during 2008, (3) fiscal year 2008
target net satellite subscriber additions lapsed unvested based
on not achieving at least 90% of the target during 2008 and
(4) fiscal year 2008 target net terrestrial additions
lapsed unvested based on not achieving at least 90% of the
target during 2008.
If Mr. Le Bruns employment is terminated by us
without cause (as defined in his agreement) during
the term of the agreement, or any extension thereof, he is
entitled to continue to receive his then current base salary for
one year immediately following such termination. Mr. Le
Bruns post-termination payments are conditioned on his
executing a release in favor of us. In addition, the agreement
contains standard covenants relating to confidentiality and
assignment of intellectual property rights, a two-year
post-employment non-solicitation covenant and a one-year
post-employment non-competition covenant. Upon a termination of
his employment following a change of control (as
defined in his agreement), Mr. Le Brun will be entitled to
the same post-employment payments as if his employment were
terminated by us without cause (as described above),
unless the successor or transferee company continues his
employment on substantially equivalent terms as under the
agreement.
Jerome B. Eisenberg. On March 31, 2008,
in connection with Jerome Eisenbergs transition from
Chairman and Chief Executive Officer to non-executive Chairman
of the Board, we entered into an employment agreement with
Mr. Eisenberg to be employed as a non-executive employee
and to serve as our non-executive Chairman of the Board,
effective as of March 31, 2008. Upon its effectiveness, the
agreement supersedes and replaces any previous employment
agreements with Mr. Eisenberg (except for any of his
obligations applicable to the period prior to March 31,
2008) and expires on December 31, 2010, unless
terminated earlier pursuant to the terms of the agreement. The
agreement may be extended by mutual agreement of the parties.
Upon the expiration of the agreements term, and any
extension thereof, Mr. Eisenberg will continue to be
employed on an at will basis.
The agreement provides for an annual base salary of $217,750.
Mr. Eisenberg also received under the terms of the
agreement a one-time cash payment in January 2009, equal to
$116,250, plus 4% interest, compounded monthly, beginning
March 31, 2008, which payment was conditioned upon
Mr. Eisenberg executing a release in favor of us. In
addition, Mr. Eisenberg is entitled to certain employee
benefits, including medical and disability insurance, term life
insurance, paid holiday and vacation time and other
41
employee benefits paid by us. For fiscal year 2008,
Mr. Eisenberg is eligible to receive a pro rata bonus,
payable in cash or cash equivalents, based on achievement of
certain performance targets established by the board of
directors or the Compensation Committee, equal to 25% of the
bonus that would have been payable to him as Chief Executive
Officer for fiscal year 2008 under his prior employment
agreement that was superseded by the agreement. Pursuant to such
prior employment agreement, Mr. Eisenberg would have been
eligible to receive a bonus for fiscal year 2008 based on a
percentage of his base salary as Chief Executive Officer
(ranging from 18% to 140%) dependent upon achieving 90% to 133%
of certain performance targets established by the board of
directors or the Compensation Committee; provided that no annual
bonus would have been payable to him unless at least 90% of the
applicable operational and financial performance targets
established by the board of directors or the Compensation
Committee for fiscal year 2008 were met or exceeded or, for
operational milestone targets, unless the operational milestone
targets were achieved by the specified time. Under the
agreement, Mr. Eisenbergs bonus for fiscal year 2009
or any subsequent year is solely at the discretion of the board
of directors and he is entitled to participate in any profit
sharing
and/or
pension plan generally provided for our employees, and in any
equity option plan or restricted equity plan established by us
in which our employees are generally permitted to participate.
In addition, under the agreement, we issued to
Mr. Eisenberg on March 31, 2008 an award of 100,000
time-based SARs. Upon the exercise of a SAR award, we will
deliver cash, shares of common stock valued at fair market value
on the date of exercise or a combination of cash and shares
common stock, as the Compensation Committee may determine. The
time-based SAR awards have a base price equal to $4.96 per
share, the fair market value of our common stock on the date of
grant. Under the terms of the SAR award, 50,000 SARs vested on
December 31, 2008, 25,000 SARs will vest on
December 31, 2009 and 25,000 SARs will vest on
December 31, 2010.
In addition, under his previous employment agreement, we issued
to Mr. Eisenberg awards consisting of 298,667 RSUs and
150,000 SARs in October 2006. The RSUs will be payable only in
shares of our common stock and the SARs have a base price equal
to $11.00 per share, (the initial public offering price of our
common stock in November 2006). One half of the RSUs consist of
time-based awards that vested in three equal installments on
January 1, 2007, 2008 and 2009. The remaining RSUs and all
the SARs consist of performance-based awards which vest in three
equal installments in 2007, 2008 and 2009 on the achievement of
certain performance targets, for each of fiscal years 2006, 2007
and 2008, established each year by the board of directors or the
Compensation Committee.
In March 2009, our Compensation Committee determined that
Mr. Eisenbergs performance-based annual incentive
awards relating to (1) fiscal year 2008 target adjusted
EBITDA had been earned based on achieving the target amount
during 2008, (2) fiscal year 2008 target revenues were
earned by Mr. Eisenberg at a 93.5% payout based on
achieving 99% of the target amount during 2008, (3) fiscal
year 2008 target net satellite subscriber additions were not
earned based on not achieving at least 90% of the target during
2008, (4) fiscal year 2008 target net terrestrial additions
were not earned based on not achieving at least 90% of the
target during 2008 and (5) certain fiscal year 2008
operational targets were not earned based on not achieving the
targets during 2008.
In March 2009, our Compensation Committee determined that both
the performance-based SAR and RSU awards granted to
Mr. Eisenberg relating to (1) fiscal year 2008 target
adjusted EBITDA vested based on achieving the target amount
during 2008, (2) fiscal year 2008 target revenues vested at
a 93.5% level based on achieving 99% of the target amount during
2008, (3) fiscal year 2008 target net satellite subscriber
additions lapsed unvested based on not achieving at least 90% of
the target during 2008 and (4) fiscal year 2008 target net
terrestrial subscriber additions lapsed unvested based on not
achieving at least 90% of the target during 2008.
If Mr. Eisenbergs employment as a non-executive
employee is terminated by us without cause (as
defined in the agreement) on or before December 31, 2010 or
by Mr. Eisenberg with good reason (as defined
in the agreement and which includes, among other things, the
failure of the board to nominate Mr. Eisenberg for election
as Chairman of the Board in 2009 and the removal by the board of
Mr. Eisenberg as Chairman of the Board for any reason other
than cause) on or before December 31, 2010, he
is entitled
42
to continue to receive, as a severance payment, his base salary
for the period equal to the greater of (1) one year
following such termination and (2) the remaining term of
the agreement, and continued health insurance coverage for one
year immediately following such termination.
Mr. Eisenbergs post-termination payments are
conditioned on his executing a release in favor of us. In
addition, his employment agreement contains standard covenants
relating to confidentiality and assignment of intellectual
property rights, a two-year post-employment non-solicitation
covenant and a one-year post-employment non-competition
covenant. Following a change of control (as defined
in the agreement) occurring on or before December 31, 2010,
if Mr. Eisenbergs employment is thereafter terminated
on or before December 31, 2010, then Mr. Eisenberg
will be entitled to the same post-employment payments as if his
employment were terminated by us without cause (as
described above), unless the successor or transferee company
continues his employment on substantially equivalent terms,
duties and responsibilities as under the agreement.
Indemnity
Agreements
We have entered into indemnification agreements with each of our
directors. In addition, we have entered into indemnification
agreements with certain of our executive officers in their
capacity as our executive officers and as directors of certain
of our subsidiaries. Each indemnification agreement provides
that we will, subject to certain exceptions, indemnify the
indemnified person in respect of any and all expenses incurred
as a result of any threatened, pending or completed action, suit
or proceedings involving the indemnified person and relating to
the indemnified persons service as an executive officer or
director of ours. We will also indemnify the indemnified person
to the fullest extent as may be provided under the provisions of
our By-Laws and Delaware law. The indemnification period lasts
for as long as the indemnified person is an executive officer or
director of ours and continues if the indemnified person is
subject to any possible claim or threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
arbitration, administrative or investigative, by reason of fact
that the indemnified person was serving in such capacity. Upon
request, we must advance all expenses incurred by the
indemnified person in connection with any proceeding, provided
the indemnified person undertakes to repay the advanced amounts
if it is determined ultimately that the indemnified person is
not entitled to be indemnified under any provision of the
indemnification agreement, our By-Laws, Delaware law or
otherwise.
Policies
and Procedures for Related Person Transactions
Pursuant to the Audit Committees charter and applicable
NASDAQ rules, the Audit Committee is responsible for reviewing
and approving all related party transactions (as defined by the
NASDAQ rules).
POTENTIAL
SERVICE PAYMENTS UPON TERMINATION OR CHANGE OF CONTROL
The following tables below reflect the amount of compensation
payable to each Named Executive Officer in the event of
termination of such executives employment or upon a change
of control based on the applicable provisions of the Named
Executive Officers employment agreement, stock option
award agreements, RSU award agreements and SAR award agreements.
The amount of compensation payable to each Named Executive
Officer upon voluntary termination, termination without cause,
change of control, disability or death is shown below for
Messrs. M. Eisenberg, Costantini, Stolte, Le Brun and J.
Eisenberg. All severance payments to the Named Executive
Officers are conditioned on the execution of a release
discharging the Company of any claims or liabilities in relation
to the Named Executive Officers employment with the
Company. The tables assume an effective date of a change of
control and termination of employment on December 31, 2008
and the amount of compensation payable to each Named Executive
Officer is based upon the employment agreement for such Named
Executive Officer as in effect as of that date. See
Certain Relationships and Transactions with Related
Persons Employment Agreements for descriptions
of the
43
employment agreements, as amended, currently in effect for our
Named Executive Officers, which may provide for amounts
different than those set forth in the following tables.
Change of
Control Triggers
For the purposes of the severance payments, change of
control means:
|
|
|
|
|
the Companys merger or consolidation with another
corporation or entity;
|
|
|
|
the Companys transfer of all or substantially all of its
assets to another person, corporation, or other entity; or
|
|
|
|
a sale of the Companys 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 Companys stock or pursuant to any stock-based
compensation plan of the Company).
|
For purposes of the stock option awards, a change of
control means the purchase or other acquisition by any
person, entity or group of persons, within the meaning of
Section 13(d) or 14(d) of the Exchange Act, or any
comparable successor provisions, of:
|
|
|
|
|
ownership of more than 50% or more of the combined voting power
of the Companys then outstanding voting securities
entitled to vote generally; or
|
|
|
|
all or substantially all of the direct and indirect assets of
the Company and its subsidiaries, other than by a person, firm,
entity or group, which together with its affiliates, prior to
such purchase or other acquisition, owned at least 50% of the
outstanding common equity of the Company.
|
For purposes of the RSU awards and SAR awards, change of
control means a change in control event that
meets the requirements of Section 409A of the Code, 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.
Post-Termination
Covenants
The RSU awards and SAR awards are subject to a non-competition
provision restricting the Named Executive Officers
employment with a competitor for six months following
termination. The RSU awards and SAR awards are also subject to a
non-solicitation provision restricting the Named Executive
Officer from soliciting certain business or the recruiting
certain of the Companys employees for one year following
termination. If the Company determines that the Named Executive
Officer violated these provisions of the RSU award or SAR award,
the Named Executive Officer will forfeit all rights to any RSUs
or SARs under the awards and will have to return to the Company
the value of any RSUs or SARs awarded to the Named Executive
Officer by the Company. The Named Executive Officers are also
subject to post-termination non-competition, non-solicitation
and confidentiality provisions in their employment agreements.
See Certain Relationships and Transactions with Related
Persons Employment Agreements.
44
Marc
Eisenberg
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Voluntary
|
|
|
|
|
|
|
|
|
Termination
|
|
|
|
|
|
|
Executive Payments
|
|
With Good
|
|
Termination
|
|
For Cause
|
|
Change in
|
Upon Termination
|
|
Reason(1)
|
|
Without Cause(1)
|
|
Termination(1)
|
|
Control(1)
|
|
Severance payments(2)
|
|
$
|
371,091
|
|
|
$
|
371,091
|
|
|
$
|
|
|
|
$
|
742,182
|
|
Time-based RSUs (unvested and accelerated)(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
80,641
|
|
Time-based SARs (unvested and accelerated)(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Performance-based RSUs (unvested and accelerated)(5)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
80,641
|
|
Performance-based SARs (unvested and accelerated)(6)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Assumes an effective date of a change of control or termination
on December 31, 2008. |
|
(2) |
|
Severance Payments: Under the terms of his
employment agreement, in the event Mr. Eisenbergs
employment is involuntarily terminated without cause by the
Company or he voluntarily terminates his employment due to a
change in material status his employment is not continued on
substantially equivalent economic terms, he would be entitled to
one year of his base salary in effect at the time of such
termination payable in regular installments consistent with our
payroll practices. He is also entitled to continued health
insurance coverage for one year immediately following such
termination at then existing employee contribution rates
representing a benefit valued at $6,091 at December 31,
2008. In the event Mr. Eisenbergs employment is
terminated following a change of control, he will be entitled to
continued base salary and health insurance coverage for the
longer of one year following the termination date or the
remaining term of the agreement at the time of termination. |
|
(3) |
|
Time-Based RSUs: Under the applicable award
agreement, in the event of a change of control having a value in
excess of $6.045 per share, Mr. Eisenberg would be entitled
to immediate vesting of all unvested time-based RSU awards. As
of December 31, 2008, he had 37,334 unvested time-based
RSUs with a value based on the closing price of the
Companys common stock of $2.16 per share as of
December 31, 2008. |
|
(4) |
|
Time-Based SARs: Under the applicable award
agreement, in the event of a change of control having a value in
excess of $6.045 per share, Mr. Eisenberg would be entitled
to immediate vesting of all unvested time-based SAR awards. As
of December 31, 2008, he had 300,000 unvested time-based
SARs. The potential amounts earned by Mr. Eisenberg as a
result of the immediate vesting of these time-based SAR awards
following a change of control are not shown in the table as the
closing price of the Companys common stock of $2.16 per
share as of December 31, 2008 was lower than the SAR base
price of $4.96 per share. |
|
(5) |
|
Performance-Based RSUs: Under the applicable
award agreement, in the event of a change of control having a
value in excess of $6.045 per share, Mr. Eisenberg would be
entitled to immediate vesting of all unvested performance-based
RSU awards, without regard to the achievement of applicable
performance targets. As of December 31, 2008, he had 37,334
unvested performance-based RSUs with a value based on the
closing price of the Companys common stock of $2.16 per
share as of December 31, 2008. These performance-based RSUs
relate to fiscal year 2008 performance targets established by
the board of directors or the Compensation Committee in 2008, of
which, 27,593 performance-based RSUs vested in March 2009 and
the remaining 9,941 performance-based RSUs lapsed unvested in
March 2009 as a result of specified performance targets for 2008
not being achieved. |
|
(6) |
|
Performance-Based SARs: Under the applicable
award agreement, in the event of a change of control having a
value in excess of $6.045 per share, Mr. Eisenberg would be
entitled to immediate vesting of all unvested performance-based
SAR awards, without regard to the achievement of applicable
performance targets. As of December 31, 2008, he had 43,334
unvested performance-based SAR awards. These performance-based
SAR awards relate to fiscal year 2008 performance established by
the board of |
45
|
|
|
|
|
directors or the Compensation Committee in 2008. The potential
amounts earned by Mr. Eisenberg as a result of the
immediate vesting of these performance-based SAR awards
following a change of control are not shown in the table as the
closing price of the Companys common stock of $2.16 per
share as of December 31, 2008 was lower than the SAR base
price of $11.00 per share. |
Robert
Costantini
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Voluntary
|
|
|
|
|
|
|
|
|
|
|
Termination
|
|
Termination
|
|
|
|
|
|
|
Executive Payments
|
|
With Good
|
|
Without
|
|
For Cause
|
|
Change in
|
|
|
Upon Termination
|
|
Reason(1)
|
|
Cause(1)
|
|
Termination(1)
|
|
Control(1)
|
|
|
|
Severance payments(2)
|
|
$
|
289,611
|
|
|
$
|
289,611
|
|
|
$
|
|
|
|
$
|
579,222
|
|
|
|
|
|
Time-based RSUs (unvested and accelerated)(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
138,000
|
|
|
|
|
|
Time-based SARs (unvested and accelerated)(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Performance-based RSUs (unvested and accelerated)(5)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,400
|
|
|
|
|
|
Performance-based SARs (unvested and accelerated)(6)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Assumes an effective date of a change of control or termination
on December 31, 2008. |
|
(2) |
|
Severance Payments: Under the terms of his
employment agreement, in the event Mr. Costantinis
employment is involuntarily terminated without cause by the
Company or he voluntarily terminates his employment due to a
change in material status his employment is not continued on
substantially equivalent economic terms, he would be entitled to
one year of his base salary in effect at the time of such
termination payable in regular installments consistent with our
payroll practices. He is also entitled to continued health
insurance coverage for one year immediately following such
termination at then existing employee contribution rates
representing a benefit valued at $6,111 at December 31,
2008. In the event Mr. Costantinis employment is
terminated following a change of control, he will be entitled to
continued base salary and health insurance coverage for the
longer of one year following the termination date or the
remaining term of the agreement at the time of termination. |
|
(3) |
|
Time-Based RSUs: Under the applicable award
agreement, in the event of a change of control having a value in
excess of $6.045 per share, Mr. Costantini would be
entitled to immediate vesting of all unvested time-based RSU
awards. As of December 31, 2008, he had 63,889 unvested
time-based RSUs with a value based on the closing price of the
Companys common stock of $2.16 per share as of
December 31, 2008. |
|
(4) |
|
Time-Based SARs: Under the applicable award
agreement, in the event of a change of control having a value in
excess of $6.045 per share, Mr. Costantini would be
entitled to immediate vesting of all unvested time-based SAR
awards. As of December 31, 2008, he had 222,223 unvested
time-based SARs. The potential amounts earned by
Mr. Costantini as a result of the immediate vesting of
these time-based SAR awards following a change of control are
not shown in the table as the closing price of the
Companys common stock of $2.16 per share as of
December 31, 2008 was lower than the SAR base prices of
$11.00 and $4.96 per share. |
|
(5) |
|
Performance-Based RSUs: Under the applicable
award agreement, in the event of a change of control having a
value in excess of $6.045 per share, Mr. Costantini would
be entitled to immediate vesting of all unvested
performance-based RSU awards, without regard to the achievement
of applicable performance targets. As of December 31, 2008,
he had 3,889 unvested performance-based RSUs with a value based
on the closing price of the Companys common stock of $2.16
per share as of December 31, 2008. These performance-based
RSUs relate to fiscal year 2008 performance established by the
board of directors or the Compensation Committee in 2008, of
which, 2,853 performance-based RSUs vested in March 2009 and the
remaining 1,036 performance-based RSUs lapsed unvested in March
2009 as a result of specified performance targets for 2009 not
being achieved. |
46
|
|
|
(6) |
|
Performance-Based SARs: Under his employment
agreement and the applicable award agreement, in the event of a
change of control having a value in excess of $6.045 per share,
Mr. Costantini would be entitled to immediate vesting of
all unvested performance-based SAR awards, without regard to the
achievement of applicable performance targets. As of
December 31, 2008, he had 22,222 unvested performance-based
SAR awards. These performance-based SAR awards relate to fiscal
year 2008 performance targets established by the board of
directors or the Compensation Committee in 2008. The potential
amounts earned by Mr. Costantini as a result of the
immediate vesting of these performance-based SAR awards
following a change of control are not shown in the table as the
closing price of the Companys common stock of $2.16 per
share as of December 31, 2008 was lower than the SAR base
price of $11.00 per share. |
John J.
Stolte, Jr.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination
|
|
|
|
|
|
|
|
|
Executive Payments
|
|
Voluntary
|
|
Without
|
|
For Cause
|
|
Change in
|
|
|
|
|
Upon Termination
|
|
Termination(1)
|
|
Cause(1)
|
|
Termination(1)
|
|
Control(1)
|
|
Death(1)
|
|
Disability(1)
|
|
Severance payments(2)
|
|
$
|
|
|
|
$
|
236,250
|
|
|
$
|
|
|
|
$
|
236,250
|
|
|
$
|
236,250
|
|
|
$
|
236,250
|
|
Time-based RSUs
(unvested and
accelerated)(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
43,682
|
|
|
|
|
|
|
|
|
|
Time-based SARs (unvested and accelerated)(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Assumes an effective date of a change of control or termination
on December 31, 2008. |
|
(2) |
|
Severance Payments: Under the terms of his
employment agreement, in the event Mr. Stoltes
employment is (a) involuntarily terminated without cause by
the Company, (b) terminated due to death or disability or
(c) not continued on substantially equivalent terms
following a change of control, he would be entitled to one year
of his base salary in effect at the time of such termination
payable in regular installments consistent with our payroll
practices. |
|
(3) |
|
Time-Based RSUs: Under the applicable award
agreement, in the event of a change of control having a value in
excess of $6.045 per share, Mr. Stolte would be entitled to
immediate vesting of all unvested time-based RSU awards. As of
December 31, 2008, he had 20,223 unvested time-based RSUs
with a value based on the closing price of the Companys
common stock of $2.16 per share as of December 31, 2008. |
|
(4) |
|
Time-Based SARs: Under the applicable award
agreement, in the event of a change of control having a value in
excess of $6.045 per share, Mr. Stolte would be entitled to
immediate vesting of all unvested time-based SAR awards. As of
December 31, 2008, he had 120,000 unvested time-based SARs.
The potential amounts earned by Mr. Stolte as a result of
the immediate vesting of these time-based SAR awards following a
change of control are not shown in the table as the closing
price of the Companys common stock of $2.16 per share as
of December 31, 2008 was lower than the SAR base price of
$4.96 per share. |
47
Christian
G. Le Brun
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Executive Payments
|
|
Voluntary
|
|
Termination
|
|
For Cause
|
|
Change in
|
|
|
Upon Termination
|
|
Termination(1)
|
|
Without Cause(1)
|
|
Termination(1)
|
|
Control(1)
|
|
|
|
Severance payments(2)
|
|
$
|
|
|
|
$
|
201,300
|
|
|
$
|
|
|
|
$
|
201,300
|
|
|
|
|
|
Stock options (unvested and accelerated)(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Time-based RSUs (unvested and accelerated)(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,801
|
|
|
|
|
|
Time-based SARs (unvested and accelerated)(5)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Performance-based RSUs (unvested and accelerated)(6)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,801
|
|
|
|
|
|
|
|
|
(1) |
|
Assumes an effective date of a change of control or termination
on December 31, 2008. |
|
(2) |
|
Severance Payments: Under the terms of his
employment agreement, in the event Mr. Le Bruns
employment is involuntarily terminated without cause he would be
entitled to one year of his base salary in effect at the time of
such termination payable in regular installments consistent with
our payroll practices. In the event Mr. Le Bruns
employment is terminated following a change of control, he will
be entitled to the same severance payments as described above. |
|
(3) |
|
Stock Options (unvested and
accelerated): Under his employment agreement and
the applicable award agreement, in the event of a change of
control having a value in excess of $6.045 per share,
Mr. Le Brun will be entitled to immediate vesting of all
unvested stock options. As of December 31, 2008,
Mr. Le Brun had 2,048 unvested stock options with an
exercise price of $4.88 per share. The potential amounts earned
by Mr. Le Brun as a result of the immediate vesting of the
stock option award following a change of control are not shown
in the table as the closing price of the Companys common
stock of $2.16 per share as of December 31, 2008 was lower
than the stock option base price of $4.88 per share. |
|
(4) |
|
Time-Based RSUs: Under the applicable award
agreement, in the event of a change of control having a value in
excess of $6.045 per share, Mr. Le Brun would be entitled
to immediate vesting of all unvested time-based RSU awards. As
of December 31, 2008, he had 4,667 unvested time-based RSUs
with a value based on the closing price of the Companys
common stock of $2.16 per share as of December 31, 2008. |
|
(5) |
|
Time-Based SARs: Under the applicable award
agreement, in the event of a change of control having a value in
excess of $6.045 per share, Mr. Le Brun would be entitled
to immediate vesting on all unvested time-based SAR awards. As
of December 31, 2008, he had 120,000 unvested time-based
SARs. The potential amounts earned by Mr. Le Brun as a
result of the immediate vesting of these time-based SAR awards
following a change of control are not shown in the table as the
closing price of the Companys common stock of $2.16 per
share as of December 31, 2008 was lower than the SAR base
price of $4.96 per share. |
|
(6) |
|
Performance-Based RSUs: Under the applicable
award agreement, in the event of a change of control having a
value in excess of $6.045 per share, Mr. Le Brun would be
entitled to immediate vesting of all unvested performance-based
RSU awards, without regard to the achievement of applicable
performance targets. As of December 31, 2008, he had 4,667
unvested performance-based RSUs with a value based on the
closing price of the Companys common stock of $2.16 per
share as of December 31, 2008. These performance-based RSUs
relate to fiscal year 2008 performance targets established by
the board of directors or the Compensation Committee in 2008, of
which 3,425 performance-based RSUs vested in March 2009 and the
remaining 1,242 performance-based RSUs lapsed unvested in March
2009 as a result of specified performance targets for 2008 not
being achieved. |
48
Jerome B.
Eisenberg
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Voluntary
|
|
|
|
|
|
|
|
|
|
|
Termination
|
|
|
|
|
|
|
|
|
Executive Payments
|
|
With Good
|
|
Termination
|
|
For Cause
|
|
Change in
|
|
|
Upon Termination
|
|
Reason(1)
|
|
Without Cause(1)
|
|
Termination(1)
|
|
Control(1)
|
|
|
|
Severance payments Termination as a non-executive
employee or Chairman of the Board(2)
|
|
$
|
443,570
|
|
|
$
|
443,570
|
|
|
$
|
|
|
|
$
|
443,570
|
|
|
|
|
|
Time-based RSUs (unvested and accelerated)(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
107,520
|
|
|
|
|
|
Time-based SARS (unvested and accelerated)(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Performance-based RSUs (unvested and accelerated)(5)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
107,520
|
|
|
|
|
|
Performance-based SARs (unvested and accelerated)(6)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Assumes an effective date of a change of control or termination
on December 31, 2008. |
|
(2) |
|
Severance Payments. Under the terms of his
employment agreement, in the event Mr. Eisenbergs
employment is involuntarily terminated without cause by the
Company or he terminates his employment with good reason he
would be entitled to his base salary for the period equal to the
greater of (1) one year following such termination and
(2) the remaining term of his employment agreement payable
in regular installments consistent with our payroll practices.
He is also entitled to continued health insurance coverage for
one year immediately following such termination at then existing
employee contribution rates representing a benefit valued at
$4,285 at December 31, 2008. In the event
Mr. Eisenbergs employment is terminated following a
change of control, he will be entitled to the same severance
payments and health insurance coverage as described above. |
|
(3) |
|
Time-Based RSUs: Under the applicable award
agreement, in the event of a change of control having a value in
excess of $6.045 per share, Mr. Eisenberg would be entitled
to immediate vesting on all unvested time-based RSU awards. As
of December 31, 2008, he had 49,778 unvested time-based
RSUs with a value based on the closing price of the
Companys common stock of $2.16 per share as of
December 31, 2008. |
|
(4) |
|
Time-Based SARs: Under the applicable award
agreement, in the event of a change of control having a value in
excess of $6.045 per share, Mr. Eisenberg would be entitled
to immediate vesting of all unvested time-based SAR awards. As
of December 31, 2008, he had 50,000 unvested time-based
SARs. The potential amounts earned by Mr. Eisenberg as a
result of the immediate vesting of these time-based SAR awards
following a change of control are not shown in the table as the
closing price of the Companys common stock of $2.16 per
share as of December 31, 2008 was lower than the SAR base
price of $4.96 per share |
|
(5) |
|
Performance-Based RSUs: Under the applicable
award agreement, in the event of a change of control having a
value in excess of $6.045 per share, Mr. Eisenberg would be
entitled to immediate vesting on all unvested performance-based
RSU awards, without regard to the achievement of applicable
performance targets. As of December 31, 2008, he had 49,778
unvested performance-based RSUs with a value based on the
closing price of the Companys common stock of $2.16 per
share as of December 31, 2008. These performance-based RSUs
relate to fiscal year 2008 performance targets established by
the board of directors or the Compensation Committee in 2008, of
which, 36,525 performance-based RSUs vested in March 2009 and
the remaining 13,253 performance-based RSUs lapsed unvested in
March 2009 as a result of specified performance targets for 2008
not being fully achieved. |
|
(6) |
|
Performance-Based SARs: Under the applicable
award agreement, in the event of a change of control having a
value in excess of $6.045 per share, Mr. Eisenberg would be
entitled to immediate vesting of all unvested performance-based
SAR awards, without regard to the achievement of applicable
performance targets. As of December 31, 2008, he had 50,000
unvested performance-based SAR awards. These performance-based
SAR awards relate to fiscal year 2008 performance targets
established by the board of directors or the Compensation
Committee in 2008. The potential amounts earned by
Mr. Eisenberg as a result of the immediate vesting of these
performance-based SAR awards following a change of control are
not shown in the table as the closing price of the
Companys common stock of $2.16 per share as of
December 31, 2008 was lower than the SAR base price of
$11.00 per share. |
49
PROPOSAL TO
RATIFY THE APPOINTMENT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
(PROPOSAL 2)
The Audit Committee has appointed the firm of
Deloitte & Touche LLP as our independent registered
public accounting firm for the fiscal year ending
December 31, 2009, subject to the ratification of the
shareholders. D&T has acted as our independent registered
public accounting firm since 2005.
Before the Audit Committee appointed D&T, it carefully
considered the independence and qualifications of that firm,
including their performance in prior years and their reputation
for integrity and for competence in the fields of accounting and
auditing. We expect that representatives of D&T will be
present at the Annual Meeting to respond to appropriate
questions and to make a statement if they desire to do so.
Principal
Accountant Fees
The following table sets forth the aggregate fees for
professional services provided by D&T for the fiscal years
ended December 31, 2008 and 2007 all of which were approved
by the Audit Committee:
|
|
|
|
|
|
|
|
|
|
|
Year Ended
|
|
|
|
December 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Audit Fees
|
|
$
|
1,135,101
|
|
|
$
|
1,065,066
|
|
Audit-Related Fees
|
|
|
|
|
|
|
160,452
|
|
Tax Fees
|
|
|
|
|
|
|
|
|
All Other Fees
|
|
|
2,000
|
|
|
|
2,000
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
1,137,101
|
|
|
$
|
1,227,518
|
|
|
|
|
|
|
|
|
|
|
Audit Fees. Consisted principally of fees for
professional services for the audit of the Companys annual
financial statements and internal control over financial
reporting and the reviews of the Companys quarterly
financial statements for fiscal year 2008 and 2007.
Audit-Related Fees. Consisted of professional
fees associated with our secondary offering in 2007.
All Other Fees. Represents fees for
subscription services to professional literature databases.
There were no tax services provided by D&T in fiscal years
2008 and 2007.
Audit
Committee Pre-Approval Policies and Procedures
The Audit Committee is responsible for the appointment and
compensation of, and oversight of the work performed by, our
independent registered public accounting firm. The Audit
Committee pre-approves all audit (including audit-related)
services and permitted non-audit services provided by our
independent registered public accounting firm in accordance with
the pre-approval policies and procedures established by the
Audit Committee.
The Audit Committee annually approves the scope and fee
estimates for the annual audit to be performed by our
independent registered public accounting firm for the next
fiscal year. With respect to other permitted services,
management defines and presents specific projects for which the
advance approval of the Audit Committee is requested. The Audit
Committee pre-approves specific engagements and projects on a
fiscal year basis, subject to individual project thresholds and
annual thresholds. The Chief Financial Officer reports to the
Audit Committee regarding the aggregate fees charged by our
independent registered public accounting firm compared to the
pre-approved amounts.
The board of directors recommends that you vote FOR
the proposal to ratify the appointment of D&T as our
independent registered public accounting firm, which is
presented as Proposal 2.
50
SHAREHOLDER
PROPOSAL REQUESTING US TO DECLASSIFY THE BOARD
(PROPOSAL 3)
John and Ellen Levinson have notified the Company that they
intend to introduce the following resolution (designated as
Proposal 3) at the Annual Meeting:
RESOLUTION: That the shareholders of ORBCOMM Inc. requests
its Board of Directors to take
the steps necessary to eliminate classification of terms of its
Board of Directors to require that all
Directors stand for election annually. The Board
declassification shall be completed in a matter
that does not affect the unexpired terms of the
previously-elected directors.
The Board
of Directors Recommends A Vote Against This Proposal
The board of directors has given careful consideration to the
shareholder proposal requiring that all members of the Board be
elected annually. The Board has determined after careful review
that this proposal is not in the best interest of the Company or
its shareholders at this time, and recommends that you vote
against it.
ORBCOMM currently has three classes of directors with members of
each class serving three-year terms. The directors are grouped
into three classes approximately equal in number and serve
staggered three-year terms. Thus, each year approximately
one-third of the Board is up for election.
Protection Against Unfair Takeover
Tactics. The Board believes that the classified
board structure enhances the Boards ability to negotiate
the best results for the shareholders in an unsolicited takeover
situation. Absent a classified board, a potential acquirer could
gain control of the Company by replacing a majority of the Board
(if not the entire Board) with its own slate of nominees at a
single annual meeting by a simple plurality of the votes cast.
With a classified board of directors, potential acquirers are
more likely to negotiate with the Board. A classified board
structure is generally designed to require at least two annual
meetings before shareholders can effect a change in control of
the board by a plurality vote. This two-year period to effect a
change of control of the Board creates an incentive for any
potential acquirer to negotiate with the Board to seek to
expedite any transaction. In addition, this structure should
give the Board the time and leverage necessary to negotiate on
behalf of shareholders, to evaluate the adequacy and fairness of
any takeover proposal, and to consider alternative methods of
maximizing shareholder value. We believe this negotiating
ability is very important to ensure that shareholder value is
maximized in the short term.
Enhances Independence. It is also the
Boards opinion that electing directors to three-year
terms, rather than one-year terms, enhances the independence of
non-management directors. The Board believes that having a
three-year term permits Directors to act independently and on
behalf of shareholders without worrying about whether they will
be re-nominated by the other members of the Board each year. The
Board believes that three-year terms allow the Company to
attract director candidates who are interested in making a
long-term commitment to the Company.
Experience and Industry Knowledge. The Board
believes that the classified board ensures that the majority of
directors will always have prior experience as directors of the
Company. The Board believes that a classified board is best
suited to maximize both short and long-term shareholder value.
Directors with meaningful tenure are able to provide valuable
insight into the rationale and historical context for past
decisions and strategies. For instance, continuity on the Board
is critical to developing, refining and executing our long-term
strategic goals. The Board also believes that continuity
provides directors with a historical perspective of the
Companys business and products and enhances its ability to
make fundamental decisions that are best for ORBCOMM
decisions on strategic transactions, significant capital
commitments and careful deployment of financial and other
resources.
Accountability to Shareholders. The Board does
not believe that the benefits of the current classified board
are achieved at the cost of a failure of accountability to
shareholders. All directors are required by law to uphold their
fiduciary responsibility to the Companys shareholders
regardless of their term of office. In addition, the corporate
governance requirements under the Sarbanes-Oxley Act of 2002 and
The NASDAQ Stock Markets rules significantly increase the
Boards responsibilities to our shareholders. Moreover, the
Board represents approximately 18% of the outstanding shares of
our common stock (exclusive of stock options and other common
stock equivalents).
51
Effect of Proposal. Approval by our
shareholders of Proposal 3 will not, by itself, declassify
the Board. The elimination of the classification structure of
our Board can only be accomplished through an amendment to our
Certificate of Incorporation, which would require that the Board
approve such an amendment and then submit the amendment to the
shareholders for approval. A vote of
662/3%
of the issued and outstanding shares of the Company in favor of
such an amendment would then be required for the shareholders to
adopt the amendment.
The Board, in exercising its fiduciary duties, must
independently consider whether it would be in the best interest
of the Company to declassify the Board. The Boards
conclusion is that declassifying the Board at this time would
not be in the best interest of shareholders.
The Board of Directors recommends a vote AGAINST this
proposal.
52
OTHER
MATTERS
Other than the shareholder proposal requesting us to declassify
the board of directors, the board of directors is not aware of
any other matters to be presented for action by the shareholders
at the Annual Meeting. In the event of a vote on any matters
other than those referred to in the accompanying Notice of 2009
Annual Meeting of Shareholders properly come before the meeting,
proxies in the accompanying form will be voted in accordance
with the best judgment of the persons voting such proxies.
SECTION 16(a)
BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934
requires our executive officers and directors, and persons who
own more than ten percent of a registered class of our equity
securities, to file reports of ownership and changes in
ownership on Forms 3, 4 and 5 with the SEC and NASDAQ.
Based on our review of the copies of such forms that we have
received and written representations from certain reporting
persons confirming that they were not required to file
Forms 5 for specified fiscal years, we believe that all our
executive officers, directors and greater than ten percent
beneficial owners complied with applicable SEC filing
requirements under Section 16(a) during fiscal year 2008,
other than Mr. Stolte who filed a late Form 4 to
report the sale of shares of common stock in May 2008 and
Mr. J. Eisenberg who filed a late Form 4 to report the
exercise of warrants in March 2008.
ANNUAL
REPORT
Our Annual Report to Shareholders, including the Annual Report
on
Form 10-K
and financial statements, for the fiscal year ended
December 31, 2008, was sent or made available to
shareholders with this proxy statement. A copy of our Annual
Report to Shareholders is also available on the internet at
[http://www.orbcomm.com].
SHAREHOLDER
PROPOSALS FOR ANNUAL MEETING IN 2010
To be eligible for inclusion in our proxy statement and the
proxy card pursuant to
Rule 14a-8,
shareholder proposals for the 2010 Annual Meeting of
Shareholders must be received on or before
[ ],
2009 by the Office of the Secretary at our headquarters, 2115
Linwood Avenue, Suite 100, Fort Lee, New Jersey 07024.
In order for shareholder proposals made outside of
Rule 14a-8
under the Exchange Act to be considered timely
within the meaning of
Rule 14a-4(c)
under the Exchange Act, such proposals must be received by the
Office of the Secretary at the above address by
[ ],
2009. If the proposal is not timely within the
meaning of
Rule 14a-4(e),
the proxies solicited by us for the 2010 Annual Meeting of
Shareholders may confer discretionary authority to us on such
proposal. In addition, our By-Laws require a shareholder
desiring to propose any matter for consideration of the
shareholders at the 2010 Annual Meeting of Shareholders or to
nominate an individual to our board of directors to notify the
Office of the Secretary in writing at the address above on or
after
[ ],
2010 and on or before
[ ],
2010. If the number of directors to be elected to the board at
the 2010 Annual Meeting of Shareholders is increased and we do
not make a public announcement naming all of the nominees for
director or specifying the increased size of the board on or
before
[ ],
2010, a shareholder proposal with respect to nominees for any
new position created by such increase will be considered timely
if received at the Office of the Secretary not later than the
tenth day following our public announcement of the increase.
CERTAIN
INFORMATION REGARDING PARTICIPANTS IN THE SOLICITATION OF
PROXIES
Under applicable SEC regulations, members of the Companys
board of directors are participants and certain
executive officers and employees may be deemed to be
participants in the Companys solicitation of
proxies in connection with the Annual Meeting. Certain required
information regarding these participants is set
forth in Annex A to this proxy statement.
53
COST OF
SOLICITATION
We will bear the cost of the solicitation of proxies. In
addition to mail and
e-mail,
proxies may be solicited personally, via the internet or by
telephone or facsimile, by a few of our regular employees
without additional compensation. We will reimburse brokers and
other persons holding stock in their names, or in the names of
nominees, for their expenses for forwarding proxy materials to
principals and beneficial owners and obtaining their proxies. As
a result of the potential proxy solicitation by
Mr. Levinson, we may incur additional costs in connection
with our solicitation of proxies. We have hired
Morrow & Co., LLC (Morrow), 470 West Ave.,
Stamford, CT 06902 to assist us in the solicitation of proxies
for a fee of up to $[ ] plus out-of-pocket
expenses. Morrow expects that approximately 25 of its employees
will assist in the solicitation. Our expenses related to the
solicitation of proxies from shareholders this year will exceed
those normally spent for an annual meeting of shareholders. Such
costs are expected to aggregate approximately
$[ ]. These additional solicitation costs are
expected to include the fee payable to our proxy solicitor; fees
of outside counsel to advise the Company in connection with a
contested solicitation of proxies; increased mailing costs, such
as the costs of additional mailings of solicitation material to
shareholders, including printing costs, mailing costs and the
reimbursement of reasonable expenses of banks, brokerage houses
and other agents incurred in forwarding solicitation materials
to beneficial owners of our common stock, as described above;
and possibly the costs of retaining an independent inspector of
election. To date, we have incurred approximately
$[ ] of these solicitation costs.
54
Annex A
INFORMATION
CONCERNING PARTICIPANTS IN THE SOLICITATION
Under applicable SEC rules and regulations, members of the Board
of Directors, the Boards nominees, and certain executive
officers and other employees of Company are
participants with respect to the Companys
solicitation of proxies in connection with the Annual Meeting.
The following sets forth certain information about the persons
who are participants.
Directors
and Nominees
The following table sets forth the names and business addresses
of the Companys directors and nominees who are
participants, as well as the names and principal
business addresses of the corporation or other organization in
which the principal occupations or employment of the directors
and nominees is carried on. The principal occupations or
employment of the Companys directors and nominees who are
participants are set forth under
Proposal 1 Election of Directors in
this Proxy Statement.
|
|
|
Name
|
|
Business Address
|
|
Didier Delepine
|
|
32 Winthrop Street, Charlestown, MA 02129
|
Jerome B. Eisenberg
|
|
2115 Linwood Avenue, Suite 100, Fort Lee, NJ 07024
|
Marc J. Eisenberg
|
|
2115 Linwood Avenue, Suite 100, Fort Lee, NJ 07024
|
Marco Fuchs
|
|
OHB Technology Universitatsallee 29 28359 Bremen Germany
|
Hans E. W. Hoffmann
|
|
Weissdornpfad 16A 28335 Bremen Germany
|
Timothy Kelleher
|
|
PCG Capital Partners 1200, Prospect Street, Suite 200,
La Jolla, CA 92037
|
John Major
|
|
MTSG, PO Box 27, 16720 Las Cuestas, Rancho Santa Fe,
CA 92067
|
Gary H. Ritondaro
|
|
Lodgenet Interactive Corporation, 3900 West Innovation
Street, Sioux Falls,
SD 57101-7002
|
Officers
and Other Employees
The following table sets forth the name and principal occupation
of the Companys executive officers and employees who are
participants. The principal business address of each
such person is
c/o ORBCOMM
Inc., 2115 Linwood Avenue, Suite 100, Fort Lee, NJ
07024.
|
|
|
Name
|
|
Principal Occupation
|
|
Marc J. Eisenberg
|
|
President and Chief Executive Officer
|
Robert G. Costantini
|
|
Executive Vice President and Chief Financial Officer
|
John J. Stolte Jr.
|
|
Executive Vice President Technology and
Operations
|
Christian G. Le Brun
|
|
Executive Vice President and General Counsel
|
Lucas Binder
|
|
VP, Business Development & Investor Relations
|
Information
Regarding Ownership of the Companys Securities by
Participants
Except as described in this Annex A or this Proxy
Statement, none of the persons listed above under
Directors and Nominees or Officers and Other
Employees owns any Company securities of record which they
do not own beneficially. The number of shares of common stock
held by directors, director nominees and the named officers as
of April 2, 2009, is set forth in the Security Ownership
of Certain Beneficial Owners and Management section of
this Proxy Statement. The number of Company securities held by
Lucas Binder is set forth below.
|
|
|
|
|
Name
|
|
Shares of Common Stock Owned
|
|
|
Lucas Binder
|
|
|
18,606
|
|
A-1
Information
Regarding Transactions in the Companys Securities by
Participants
The following table sets forth purchases and sales during the
past two years of the Companys securities by the persons
listed above under Directors and Nominees and
Officers and Other Employees. None of the purchase
price or market value of the securities listed below is
represented by funds borrowed or otherwise obtained for the
purpose of acquiring or holding such securities.
Shares of
Common Stock Purchased or Sold (April 2, 2007 through
April 2, 2009)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Shares,
|
|
|
|
|
|
|
|
|
|
Stock Options, Warrants,
|
|
|
|
|
|
|
|
|
|
RSUs, SARs Acquired or
|
|
|
|
|
Name
|
|
Date
|
|
|
(Disposed of)
|
|
|
Notes
|
|
|
Jerome B. Eisenberg
|
|
|
4/2/2007
|
|
|
|
43,307
|
|
|
|
(1
|
)
|
Jerome B. Eisenberg
|
|
|
5/24/2007
|
|
|
|
(235,288
|
)
|
|
|
(2
|
)
|
Jerome B. Eisenberg
|
|
|
5/29/2007
|
|
|
|
(69,477
|
)
|
|
|
(2
|
)
|
Jerome B. Eisenberg
|
|
|
10/5/2007
|
|
|
|
10,490
|
|
|
|
(3
|
)
|
Jerome B. Eisenberg
|
|
|
1/1/2008
|
|
|
|
49,778
|
|
|
|
(1
|
)
|
Jerome B. Eisenberg
|
|
|
3/6/2008
|
|
|
|
14,933
|
|
|
|
(1
|
)
|
Jerome B. Eisenberg
|
|
|
3/6/2008
|
|
|
|
11,801
|
|
|
|
(3
|
)
|
Jerome B. Eisenberg
|
|
|
3/6/2008
|
|
|
|
49,778
|
|
|
|
(4
|
)
|
Jerome B. Eisenberg
|
|
|
3/6/2008
|
|
|
|
50,000
|
|
|
|
(5
|
)
|
Jerome B. Eisenberg
|
|
|
3/12/2008
|
|
|
|
3,000
|
|
|
|
(1
|
)
|
Jerome B. Eisenberg
|
|
|
3/31/2008
|
|
|
|
100,000
|
|
|
|
(5
|
)
|
Jerome B. Eisenberg
|
|
|
5/14/2008
|
|
|
|
5,581
|
|
|
|
(3
|
)
|
Jerome B. Eisenberg
|
|
|
9/5/2008
|
|
|
|
15,983
|
|
|
|
(3
|
)
|
Jerome B. Eisenberg
|
|
|
12/2/2008
|
|
|
|
23,250
|
|
|
|
(6
|
)
|
Jerome B. Eisenberg
|
|
|
12/3/2008
|
|
|
|
26,599
|
|
|
|
(6
|
)
|
Jerome B. Eisenberg
|
|
|
12/4/2008
|
|
|
|
151
|
|
|
|
(6
|
)
|
Jerome B. Eisenberg
|
|
|
1/1/2009
|
|
|
|
49,778
|
|
|
|
(1
|
)
|
Jerome B. Eisenberg
|
|
|
3/16/2009
|
|
|
|
36,525
|
|
|
|
(1
|
)
|
Marco Fuchs
|
|
|
5/24/2007
|
|
|
|
(465,885
|
)
|
|
|
(2
|
)
|
Marco Fuchs
|
|
|
5/29/2007
|
|
|
|
(137,551
|
)
|
|
|
(2
|
)
|
Marco Fuchs
|
|
|
6/4/2007
|
|
|
|
86,541
|
|
|
|
(3
|
)
|
Marco Fuchs
|
|
|
6/4/2007
|
|
|
|
(13,016
|
)
|
|
|
(7
|
)
|
Didier Delepine
|
|
|
5/11/2007
|
|
|
|
1,850
|
|
|
|
(4
|
)
|
Didier Delepine
|
|
|
12/31/2007
|
|
|
|
1,850
|
|
|
|
(1
|
)
|
Didier Delepine
|
|
|
2/29/2008
|
|
|
|
5,263
|
|
|
|
(4
|
)
|
Didier Delepine
|
|
|
1/1/2009
|
|
|
|
5,263
|
|
|
|
(1
|
)
|
Didier Delepine
|
|
|
2/2/2009
|
|
|
|
19,355
|
|
|
|
(4
|
)
|
Hans E. W. Hoffman
|
|
|
5/11/2007
|
|
|
|
1,850
|
|
|
|
(4
|
)
|
Hans E. W. Hoffman
|
|
|
5/24/2007
|
|
|
|
(7,163
|
)
|
|
|
(2
|
)
|
Hans E. W. Hoffman
|
|
|
6/27/2007
|
|
|
|
16,667
|
|
|
|
(8
|
)
|
Hans E. W. Hoffman
|
|
|
6/27/2007
|
|
|
|
(2,783
|
)
|
|
|
(9
|
)
|
Hans E. W. Hoffman
|
|
|
12/31/2007
|
|
|
|
1,850
|
|
|
|
(1
|
)
|
Hans E. W. Hoffman
|
|
|
2/29/2008
|
|
|
|
5,263
|
|
|
|
(4
|
)
|
Hans E. W. Hoffman
|
|
|
1/1/2009
|
|
|
|
5,263
|
|
|
|
(1
|
)
|
Hans E. W. Hoffman
|
|
|
2/2/2009
|
|
|
|
19,355
|
|
|
|
(4
|
)
|
A-2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Shares,
|
|
|
|
|
|
|
|
|
|
Stock Options, Warrants,
|
|
|
|
|
|
|
|
|
|
RSUs, SARs Acquired or
|
|
|
|
|
Name
|
|
Date
|
|
|
(Disposed of)
|
|
|
Notes
|
|
|
Gary H. Ritondaro
|
|
|
5/11/2007
|
|
|
|
1,850
|
|
|
|
(4
|
)
|
Gary H. Ritondaro
|
|
|
12/31/2007
|
|
|
|
1,850
|
|
|
|
(1
|
)
|
Gary H. Ritondaro
|
|
|
2/29/2008
|
|
|
|
5,263
|
|
|
|
(4
|
)
|
Gary H. Ritondaro
|
|
|
1/1/2009
|
|
|
|
5,263
|
|
|
|
(1
|
)
|
Gary H. Ritondaro
|
|
|
2/2/2009
|
|
|
|
19,355
|
|
|
|
(4
|
)
|
Timothy Kelleher
|
|
|
5/24/2007
|
|
|
|
(855,271
|
)
|
|
|
(2
|
)
|
Timothy Kelleher
|
|
|
5/29/2007
|
|
|
|
(252,498
|
)
|
|
|
(2
|
)
|
John Major
|
|
|
5/11/2007
|
|
|
|
1,850
|
|
|
|
(4
|
)
|
John Major
|
|
|
12/31/2007
|
|
|
|
1,850
|
|
|
|
(1
|
)
|
John Major
|
|
|
2/29/2008
|
|
|
|
5,263
|
|
|
|
(4
|
)
|
John Major
|
|
|
1/1/2009
|
|
|
|
5,263
|
|
|
|
(1
|
)
|
John Major
|
|
|
2/2/2009
|
|
|
|
19,355
|
|
|
|
(4
|
)
|
Marc J. Eisenberg
|
|
|
4/2/2007
|
|
|
|
31,025
|
|
|
|
(1
|
)
|
Marc J. Eisenberg
|
|
|
5/2/2007
|
|
|
|
7,868
|
|
|
|
(3
|
)
|
Marc J. Eisenberg
|
|
|
5/2/2007
|
|
|
|
(1,450
|
)
|
|
|
(10
|
)
|
Marc J. Eisenberg
|
|
|
5/24/2007
|
|
|
|
(69,106
|
)
|
|
|
(2
|
)
|
Marc J. Eisenberg
|
|
|
5/29/2007
|
|
|
|
(20,401
|
)
|
|
|
(2
|
)
|
Marc J. Eisenberg
|
|
|
5/30/2007
|
|
|
|
20,000
|
|
|
|
(8
|
)
|
Marc J. Eisenberg
|
|
|
5/30/2007
|
|
|
|
(8,543
|
)
|
|
|
(9
|
)
|
Marc J. Eisenberg
|
|
|
1/1/2008
|
|
|
|
37,333
|
|
|
|
(1
|
)
|
Marc J. Eisenberg
|
|
|
3/6/2008
|
|
|
|
13,067
|
|
|
|
(1
|
)
|
Marc J. Eisenberg
|
|
|
3/6/2008
|
|
|
|
43,334
|
|
|
|
(5
|
)
|
Marc J. Eisenberg
|
|
|
3/6/2008
|
|
|
|
37,334
|
|
|
|
(4
|
)
|
Marc J. Eisenberg
|
|
|
3/12/2008
|
|
|
|
8,000
|
|
|
|
(1
|
)
|
Marc J. Eisenberg
|
|
|
3/31/2008
|
|
|
|
425,000
|
|
|
|
(5
|
)
|
Marc J. Eisenberg
|
|
|
12/2/2008
|
|
|
|
15,000
|
|
|
|
(6
|
)
|
Marc J. Eisenberg
|
|
|
1/1/2009
|
|
|
|
37,334
|
|
|
|
(1
|
)
|
Marc J. Eisenberg
|
|
|
3/16/2009
|
|
|
|
27,393
|
|
|
|
(1
|
)
|
Robert Costantini
|
|
|
4/2/2007
|
|
|
|
3,889
|
|
|
|
(1
|
)
|
Robert Costantini
|
|
|
5/24/2007
|
|
|
|
(7,778
|
)
|
|
|
(2
|
)
|
Robert Costantini
|
|
|
1/1/2008
|
|
|
|
3,889
|
|
|
|
(1
|
)
|
Robert Costantini
|
|
|
2/29/2008
|
|
|
|
100,000
|
|
|
|
(4
|
)
|
Robert Costantini
|
|
|
3/6/2008
|
|
|
|
3,889
|
|
|
|
(4
|
)
|
Robert Costantini
|
|
|
3/6/2008
|
|
|
|
2,528
|
|
|
|
(2
|
)
|
Robert Costantini
|
|
|
3/31/2008
|
|
|
|
250,000
|
|
|
|
(5
|
)
|
Robert Costantini
|
|
|
12/31/2008
|
|
|
|
40,000
|
|
|
|
(1
|
)
|
Robert Costantini
|
|
|
1/1/2009
|
|
|
|
3,889
|
|
|
|
(1
|
)
|
Robert Costantini
|
|
|
3/16/2009
|
|
|
|
2,853
|
|
|
|
(1
|
)
|
John J. Stolte Jr.
|
|
|
5/21/2007
|
|
|
|
35,389
|
|
|
|
(1
|
)
|
John J. Stolte Jr.
|
|
|
5/24/2007
|
|
|
|
(13,870
|
)
|
|
|
(2
|
)
|
John J. Stolte Jr.
|
|
|
5/29/2007
|
|
|
|
(4,094
|
)
|
|
|
(2
|
)
|
John J. Stolte Jr.
|
|
|
9/10/2007
|
|
|
|
(4,357
|
)
|
|
|
(11
|
)
|
A-3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Shares,
|
|
|
|
|
|
|
|
|
|
Stock Options, Warrants,
|
|
|
|
|
|
|
|
|
|
RSUs, SARs Acquired or
|
|
|
|
|
Name
|
|
Date
|
|
|
(Disposed of)
|
|
|
Notes
|
|
|
John J. Stolte Jr.
|
|
|
9/11/2007
|
|
|
|
(4,356
|
)
|
|
|
(11
|
)
|
John J. Stolte Jr.
|
|
|
9/12/2007
|
|
|
|
(4,356
|
)
|
|
|
(11
|
)
|
John J. Stolte Jr.
|
|
|
9/13/2007
|
|
|
|
(4,356
|
)
|
|
|
(11
|
)
|
John J. Stolte Jr.
|
|
|
3/31/2008
|
|
|
|
150,000
|
|
|
|
(5
|
)
|
John J. Stolte Jr.
|
|
|
5/21/2008
|
|
|
|
20,222
|
|
|
|
(1
|
)
|
John J. Stolte Jr.
|
|
|
5/22/2008
|
|
|
|
(6,625
|
)
|
|
|
(12
|
)
|
John J. Stolte Jr.
|
|
|
1/1/2009
|
|
|
|
20,223
|
|
|
|
(1
|
)
|
Christian G. Le Brun
|
|
|
4/2/2007
|
|
|
|
4,061
|
|
|
|
(1
|
)
|
Christian G. Le Brun
|
|
|
5/24/2007
|
|
|
|
(8,727
|
)
|
|
|
(2
|
)
|
Christian G. Le Brun
|
|
|
1/1/2008
|
|
|
|
4,667
|
|
|
|
(1
|
)
|
Christian G. Le Brun
|
|
|
3/6/2008
|
|
|
|
2,333
|
|
|
|
(1
|
)
|
Christian G. Le Brun
|
|
|
3/6/2008
|
|
|
|
4,667
|
|
|
|
(4
|
)
|
Christian G. Le Brun
|
|
|
3/31/2008
|
|
|
|
150,000
|
|
|
|
(5
|
)
|
Christian G. Le Brun
|
|
|
12/4/2008
|
|
|
|
10,000
|
|
|
|
(6
|
)
|
Christian G. Le Brun
|
|
|
1/1/2009
|
|
|
|
4,667
|
|
|
|
(1
|
)
|
Christian G. Le Brun
|
|
|
3/16/2009
|
|
|
|
3,425
|
|
|
|
(1
|
)
|
Lucas Binder
|
|
|
5/15/2008
|
|
|
|
1,000
|
|
|
|
(6
|
)
|
Lucas Binder
|
|
|
5/21/2008
|
|
|
|
1,000
|
|
|
|
(6
|
)
|
Lucas Binder
|
|
|
6/5/2008
|
|
|
|
1,000
|
|
|
|
(6
|
)
|
Lucas Binder
|
|
|
6/5/2008
|
|
|
|
600
|
|
|
|
(6
|
)
|
Lucas Binder
|
|
|
6/19/2008
|
|
|
|
1,000
|
|
|
|
(6
|
)
|
Lucas Binder
|
|
|
7/14/2008
|
|
|
|
45,000
|
|
|
|
(4
|
)
|
Lucas Binder
|
|
|
7/14/2008
|
|
|
|
15,000
|
|
|
|
(5
|
)
|
Lucas Binder
|
|
|
12/4/2008
|
|
|
|
2,000
|
|
|
|
(6
|
)
|
Lucas Binder
|
|
|
12/4/2008
|
|
|
|
1,000
|
|
|
|
(6
|
)
|
Lucas Binder
|
|
|
12/4/2008
|
|
|
|
1,000
|
|
|
|
(6
|
)
|
Lucas Binder
|
|
|
12/4/2008
|
|
|
|
400
|
|
|
|
(6
|
)
|
Lucas Binder
|
|
|
12/4/2008
|
|
|
|
100
|
|
|
|
(6
|
)
|
|
|
|
(1) |
|
Represents shares acquired upon the conversion of Restricted
Stock Units. |
|
(2) |
|
Represents shares sold pursuant to secondary public offering. |
|
(3) |
|
Represents shares acquired upon the exercise of warrants. |
|
(4) |
|
Represents a Restricted Stock Unit grant. |
|
(5) |
|
Represents a Stock Appreciation Right grant. |
|
(6) |
|
Represents open market purchase. |
|
(7) |
|
Represents shares delivered in payment of the exercise price due
upon the exercise of warrants. |
|
(8) |
|
Represents shares acquired upon the exercise of non-qualified
stock options. |
|
(9) |
|
Represents shares delivered in payment of the exercise price due
upon the exercise of non-qualified stock options. |
|
(10) |
|
Represents shares delivered in payment of the exercise price due
upon the exercise of warrants. |
|
(11) |
|
Represents shares sold on the open market. |
A-4
|
|
|
(12) |
|
Represents shares withheld as payment of tax withholding
required upon conversion of Restricted Stock Units. |
Miscellaneous
Information Concerning Participants
Except as described in this Annex A or this Proxy
Statement, neither any participant nor any of their respective
associates or affiliates (together, the Participant
Affiliates) is either a party to any transaction or series
of transactions since January 1, 2008, or has knowledge of
any current proposed transaction or series of proposed
transactions, (i) to which the Company or any of its
subsidiaries was or is to be a participant, (ii) in which
the amount involved exceeds $120,000, and (iii) in which
any participant or Participant Affiliate had, or will have, a
direct or indirect material interest. Furthermore, except as
described in this Annex A or this Proxy Statement,
(a) no participant or Participant Affiliate, directly or
indirectly, beneficially owns any securities of the Company or
any securities of any subsidiary of the Company, and (b) no
participant owns any securities of the Company of record but not
beneficially.
Except as described in this Annex A or this Proxy
Statement, no participant or Participant Affiliate has entered
into any agreement or understanding with any person with respect
to any future employment by the Company or any of its affiliates
or any future transactions to which the Company or any of its
affiliates will or may be a party.
Except as described in this Annex A or this Proxy
Statement, there are no contracts, arrangements or
understandings by any participant or Participant Affiliate since
January 1, 2008 with any person with respect to any
securities of the Company, including, but not limited to, joint
ventures, loan or option arrangements, puts or calls, guarantees
against loss or guarantees of profit, division of losses or
profits, or the giving or withholding of proxies. Except as
described in this Annex A or this Proxy Statement, and
excluding any director or executive officer of the Company
acting solely in that capacity, no person who is a party to an
arrangement or understanding pursuant to which a nominee for
election as director is proposed to be elected has any
substantial interest, direct or indirect, by security holdings
or otherwise, in any matter to be acted upon at the Annual
Meeting.
A-5
ADMISSION TO THE 2009 ANNUAL MEETING
An admission ticket (or other proof of stock ownership) and proper identification will be
required for admission to the Annual Meeting of Shareholders on May [], 2009. Admission
tickets are printed on the outside back cover of this proxy statement. To enter the meeting, you
will need an admission ticket or other proof that you are a shareholder. If you hold your shares
through a broker or nominee, you will need to bring either a copy of the voting instruction card
provided by your broker or nominee, or a copy of a brokerage statement showing your ownership as of
the April 2, 2009 record date.
Notice: If you plan on attending the 2009 Annual Meeting,
please cut out and use the admission ticket(s) below.
No admission will be granted without an admission ticket.
Annual Meeting of Shareholders
May [], 2009, 10:00 a.m. (local time)
[Meeting Location and Telephone #]
PLEASE VOTE YOUR SHARES VIA THE TELEPHONE OR INTERNET, OR SIGN, DATE
AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE.
|
|
|
|
ADMISSION TICKET
|
|
|
ADMISSION TICKET |
|
|
|
|
ORBCOMM Inc.
|
|
|
ORBCOMM Inc. |
|
|
|
|
2009 Annual Meeting of Shareholders
|
|
|
2009 Annual Meeting of Shareholders |
|
|
|
|
[Meeting Location and Telephone #]
|
|
|
[Meeting Location and Telephone #] |
|
|
|
|
May [], 2009
|
|
|
May [], 2009 |
|
|
|
|
10:00 a.m. (local time)
|
|
|
10:00 a.m. (local time) |
|
|
|
|
Admit ONE
|
|
|
Admit ONE |
PRELIMINARY
PROXY MATERIAL SUBJECT TO COMPLETION
WHITE PROXY
ORBCOMM INC.
PROXY FOR ANNUAL MEETING OF SHAREHOLDERS
To be held on May [ ], 2009
This Proxy is Solicited on behalf of the Board of Directors of ORBCOMM Inc.
The undersigned shareholder of ORBCOMM Inc. (ORBCOMM) hereby appoints Marc Eisenberg and
Christian G. Le Brun and each of them, the lawful attorneys and proxies of the undersigned, each
with powers of substitution, to vote all shares of common stock of ORBCOMM held of record by the
undersigned on April 2, 2009 at the Annual Meeting of Shareholders (the Annual Meeting) to be
held in [location], on May [___], 2009 at 10:00 a.m., local time, and at any and all adjournments,
postponements or delays thereof, with all the powers the undersigned would possess if personally
present, upon all matters set forth in the Notice of Annual Meeting of Shareholders and Proxy
Statement dated April [___], 2009, receipt of which is hereby acknowledged.
The undersigned hereby revokes any other proxy or proxies heretofore given to vote or act with
respect to the shares of common stock of ORBCOMM held by the undersigned, and hereby ratifies and
confirms all action the herein named attorneys and proxies, their substitutes, or any of them may
lawfully take by virtue hereof.
Shares represented by all properly executed proxies will be voted in accordance with the
instructions appearing on the proxy and in the discretion of the proxy holders as to any other
matters that may properly come before the Annual Meeting. PROXIES WILL BE VOTED AS DIRECTED OR, IF
NO CONTRARY DIRECTION IS INDICATED OR IN THE ABSENCE OF INSTRUCTIONS, WILL BE VOTED FOR EACH OF THE
NOMINEES SET FORTH IN PROPOSAL 1 AND FOR PROPOSAL 2 AND AGAINST PROPOSAL 3 AND IN THE DISCRETION
OF THE PROXY HOLDERS AS TO ANY OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE ANNUAL MEETING.
YOUR VOTE IS IMPORTANT
VOTE BY INTERNET OR TELEPHONE
AVAILABLE 24 HOURS A DAY, 7 DAYS A WEEK
Internet and telephone voting is available through [11:59 P.M.] Eastern Time on May [___], 2009
|
|
|
INTERNET
[ ]
Use the internet to vote your proxy.
Have your proxy card in hand when
you access the website and
follow the instructions.
|
OR |
TELEPHONE [ - - ]
Use any touch-tone telephone to
vote your proxy. Have your proxy
card in hand when you call and
follow the instructions. |
|
|
|
|
|
|
Important Notice Regarding the Availability of Proxy Materials for the Shareholder Meeting to Be Held on May [ ], 2009
You may obtain copies of the Proxy Statement and Annual Report on the internet at www.orbcomm.com[/folder]
If you vote your proxy by internet or by telephone, you do NOT need to mail back your proxy card.
TO VOTE BY MAIL, MARK, SIGN AND DATE YOUR PROXY CARD AND RETURN IT IN THE
ENCLOSED POSTAGE-PAID ENVELOPE.
(Continued and to be signed on the reverse side)
|
|
|
|
|
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE ELECTION OF
DIRECTORS , FOR PROPOSAL 2 AND AGAINST PROPOSAL 3.
|
Please mark
vote as
indicated in
this example
|
x |
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FOR
|
|
AGAINST
|
|
ABSTAIN |
|
|
|
|
1. Election of Directors (check one box only): |
2. |
Ratification of Deloitte & Touche
LLP as Independent Registered Public |
|
o |
|
o |
|
o |
|
|
o
|
|
FOR ALL NOMINEES
|
|
NOMINEES:
|
|
Accounting Firm. |
|
|
|
|
|
|
|
|
|
|
|
|
01 - Jerome B. Eisenberg |
|
|
|
|
|
|
|
|
|
|
o
|
|
WITHHOLD AUTHORITY
FOR ALL NOMINEES
|
|
02 - Marco Fuchs
|
3. |
Shareholder Proposal Requesting Us
to Declassify the Board of Directors. |
|
o
|
|
o
|
|
o
|
|
|
|
|
|
|
|
|
In their discretion, the proxies are
authorized to vote upon such other
business as may properly come before
the Annual Meeting and any
postponements, adjournments or
delays thereof. |
|
|
|
|
|
|
|
|
o
|
|
FOR ALL EXCEPT
(See instructions below)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
If you plan to attend the Annual
Meeting, please mark the WILL ATTEND
box: |
|
WILL ATTEND
o |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INSTRUCTION: |
|
To withhold authority to vote for any individual nominee(s),
mark FOR ALL EXCEPT and write that nominees name in the
space provided below: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Date: |
, 2009 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Signature |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Signature (if held jointly) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title |
|
|
|
|
|
|
|
|
|
Note: Please sign exactly as your name or names appear on this
Proxy. When shares are held jointly, each holder should sign.
When signing as executor, administrator, attorney, trustee or
guardian, please give full title as such. If the signer is a
corporation, please sign full corporate name by duly authorized
officer, giving full title as such. If signer is a partnership, please
sign in partnership name by authorized person. |
PLEASE SIGN, DATE AND RETURN THIS CARD PROMPTLY USING THE ENCLOSED POSTAGE-PAID
ENVELOPE.