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.   )

Filed by the Registrant þ

Filed by a Party other than the Registrant o

 

Check the appropriate box:

 

 

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):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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.

 

 

 

 

 

 

 

 

 

 

April 13, 2009

 

Dear Shareholder:

 

You are cordially invited to attend our 2009 Annual Meeting of Shareholders.

 

We will hold the Annual Meeting at the Hyatt Dulles, 2300 Dulles Corner Boulevard, Herndon, Virginia 20171, on Wednesday, May 6, 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 year’s 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 BOARD’S 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 http://bnymellon.mobular.net/bnymellon/orbc. I hope you find them interesting and useful in understanding your company.

 

Sincerely yours,

 

 

Jerome B. Eisenberg
Chairman of the Board

 

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 the Hyatt Dulles, 2300 Dulles Corner Boulevard, Herndon, Virginia 20171, on Wednesday, May 6, 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 13, 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 ORBCOMM’s 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

 

 

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 6, 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 (http://bnymellon.mobular.net/bnymellon/orbc) on or about April 13, 2009. We will refer to our company in this proxy statement as “we”, “us”, the “Company” or “ORBCOMM”.

 

What am I Voting On at the Annual Meeting?

 

You will be voting on the following:

 

 

Who is Entitled to Vote at the Annual Meeting?

 

Only holders of record of the Company’s 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:

 

 

 

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:

 

 

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.

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:

 

 

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

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 6, 2009

 

The proxy statement and annual report to stockholders are available at http://bnymellon.mobular.net/bnymellon/orbc.

 

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

 

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 Company’s 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 8^th 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 Board’s nominees) because, among other reasons, the Board believes that the strategy put forth by the Levinson Nominees is inconsistent with the Company’s long-term plan as approved by the Board of Directors. The Board believes that Mr. Miron, whom the Levinson Nominees would seek to install as the Company’s chief executive officer, lacks meaningful knowledge of the Company and its industry,

in addition to lacking meaningful executive experience, which belief is based on Mr. Miron’s own biography, where he discloses no business or operating experience with satellite companies or the satellite industry in general, and indicates that, since 2005, he has been acting as a consultant/advisor and not as an executive of a public or private company. The Board also does not believe that a change in the Company’s 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 Board believes that the Company’s current business strategy is the most appropriate way to capitalize on the Company’s existing assets. In particular, the Company does not believe that a shift toward a different business model that would likely have the Company develop applications and market directly to end-users and thereby compete with its customers would be in the best interests of the Company or its shareholders or a prudent use of resources. In addition, the Company believes that it will have sufficient liquidity to meet its capital expenditure needs and does not believe that a $25 million capital raise (which is likely to be dilutive to current shareholders) is necessary for the Company to implement its current business strategy.

 

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 Company’s 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.”

 

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 year’s 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 Company’s WHITE proxy card.

INFORMATION AS TO NOMINEES FOR DIRECTORS AND CONTINUING DIRECTORS

 

For each director nominee and each continuing director, we have stated the nominee’s or continuing director’s 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

 

 

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.

 

 

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

 

 

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 Equant’s network services division and as Chairman and President of Equant’s 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 world’s 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.

 

 

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.

 

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 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

 

 

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.

 

 

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.

 

 

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.

 

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 Company’s 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:

 

 

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.

Compensation Committee.  The Compensation Committee, among other things:

 

 

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:

 

 

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

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:

 

 

The committee from time to time reviews with the board, our Board Membership Criteria in the context of current board composition and the Company’s 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 candidate’s 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.

 

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

 

 

 

 

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 Company’s 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 Company’s financial statements. Management is also responsible for establishing and maintaining adequate internal control over financial reporting and evaluating the effectiveness of the Company’s 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 Company’s 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 Company’s internal control over financial reporting.

 

We are responsible for overseeing the Company’s accounting and financial reporting processes. In fulfilling our responsibilities for the accounting and financial processes for fiscal year 2008, we:

 

 

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 Company’s 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 Company’s 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

 

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.

 

 

 

 

 

 

 

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 Committee’s composition, functions, duties and responsibilities is set forth in this proxy statement under “Board of Directors and Committees — Compensation Committee”.

 

The Compensation Committee’s 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 Committee’s 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

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 Company’s 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:

 

 

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.

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:

 

 

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 Committee’s 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

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:

 

 

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:

 

 

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

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 participant’s 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:

 

 

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

individual performance, a review of each executive’s 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 Company’s business. An item is not a perquisite if it is integrally and directly related to the performance of the executive’s 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 employee’s 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 employee’s date of employment. We have not made any contributions since the inception of the plan.

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 executive’s 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 company’s 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

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.

 

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

 

Summary Compensation Table

 

 

 

 

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.

 

Grants of Plan-Based Awards in 2008