EXHIBIT 10.6
EXECUTION COPY
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "AGREEMENT"), dated as of January 28, 2005,
by and among Zeus Holdings Limited (the "PARENT"), a Bermuda corporation,
Intelsat Global Service Corporation (the "COMPANY"), and the individual set
forth on ATTACHMENT 1 (the "EXECUTIVE").
WHEREAS, pursuant to the transactions contemplated by the Transaction
Agreement and Plan of Amalgamation among Intelsat, Ltd., Intelsat (Bermuda),
Ltd., the Parent, Zeus Merger One Limited and Zeus Merger Two Limited dated as
of August 16, 2004 (the "TRANSACTION AGREEMENT"), the Company will become a
wholly owned subsidiary of the Parent;
WHEREAS, the Executive is currently employed by the Company pursuant
to the Prior Agreements as identified on ATTACHMENT 1; and
WHEREAS, subject to the consummation of the transactions contemplated
by the Transaction Agreement, the Company desires to employ the Executive on a
full-time basis and the Executive desires to be so employed by the Company;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein (including, without limitation, the Company's employment of the
Executive and the advantages and benefits thereby inuring to the Executive) and
for other good and valuable consideration, the receipt, adequacy and sufficiency
of which are hereby acknowledged by each party hereto, the parties hereby agree
as follows:
1. EFFECTIVENESS OF AGREEMENT AND EMPLOYMENT OF THE EXECUTIVE.
1.1 EFFECTIVENESS OF AGREEMENT. This Agreement shall become effective
upon the Closing (as defined in the Transaction Agreement); PROVIDED, HOWEVER,
that in the event that the transactions contemplated by the Transaction
Agreement are formally abandoned, this Agreement shall be null and void AB
INITIO and shall have no force and effect.
1.2 EMPLOYMENT BY THE COMPANY. The Company hereby employs the
Executive in the position set forth on ATTACHMENT 1 and the Executive hereby
accepts such employment with the Company as of the Closing. During the
Employment Period (as defined in Section 3), the Executive shall directly and
exclusively report to, and perform such duties and services for the Company, as
may be designated from time to time by the individual specified on ATTACHMENT 1,
or such other person designated by the Company. The subsidiaries and affiliates
of the Company shall hereinafter be referred to as, collectively, "AFFILIATES".
During the Employment Period, the Executive shall devote all of his business
time and attention to his employment under this Agreement; PROVIDED, HOWEVER,
that the Executive may continue to engage in the outside activities set forth on
ATTACHMENT 1 during the Employment Period. The Executive acknowledges that he
shall be required to travel on business in connection with the performance of
his duties hereunder.
1.3 LOCATION. During the Employment Period, the Executive's principal
place of employment shall be Washington, D.C.
2. COMPENSATION AND BENEFITS.
2.1 (a) SALARY. During the Employment Period, the Company shall pay
the Executive for services during his employment under this Agreement a base
salary of no less than the annual rate set forth on ATTACHMENT 1 ("BASE
SALARY"). The Base Salary received by the Executive shall be reviewed by the
Compensation Committee of the Board of the Company and, following an initial
public offering of the Company or a direct or indirect subsidiary or parent of
the Company, the Compensation Committee of the Board of the Company or such
parent or subsidiary to be publicly-traded pursuant to such initial public
offering (such applicable committee, the "COMPENSATION COMMITTEE") no less
frequently than annually. Any and all increases to the Executive's Base Salary
shall be determined by the Compensation Committee, in its sole discretion.
During the Employment Period, such Base Salary shall be payable in equal
biweekly installments pursuant to the Company's customary payroll policies in
force at the time of payment, less any required or authorized payroll
deductions. The Base Salary may be increased, but not decreased, during the
Employment Period.
(b) ANNUAL BONUS. For each fiscal year during the Employment
Period, the Executive shall be eligible to receive an annual discretionary bonus
with a maximum amount (the "MAXIMUM BONUS AMOUNT") up to the percentage of his
Base Salary set forth on ATTACHMENT 1, subject to his satisfaction of objective
performance criteria that have been pre-established by the Compensation
Committee in a consistent manner with those of other senior executives of the
Company. For each fiscal year during the Employment Period, the Compensation
Committee may award an additional bonus, in its sole discretion, to the
Executive of up to 50% of the Executive's Maximum Bonus Amount, in the event of
the Executive's significant out-performance of objective performance criteria
that have been pre-established by the Compensation Committee. During the
Employment Period, the Executive also will be eligible to participate in any
deferred compensation plan that is sponsored by the Company in accordance with
its terms.
(c) EQUITY COMPENSATION. (i) EXISTING EQUITY. The options granted
to the Executive under the Intelsat, Ltd. 2001 Share Option Plan (the "2001 PLAN
OPTIONS") and the Intelsat, Ltd. 2004 Share Incentive Plan (the "2004 PLAN
OPTIONS"), and the restricted shares granted to the Executive (the "RS"), all of
which are listed on Schedule 1 hereto and continue to be outstanding as of the
Closing, shall be treated as of the Closing as set forth herein, notwithstanding
the provisions of the Transaction Agreement:
(A) Each of the Executive's 2001 Plan Options shall be cancelled in
exchange for a cash payment, as soon as practicable following the
Closing, equal to the aggregate Spread (as defined in Section
2.1(c)(i)(D) below) of such options, less applicable withholding
taxes.
(B) The Executive's 2004 Plan Options shall be cancelled in exchange
for a cash payment, as soon as practicable following the Closing,
equal to the aggregate Spread of the options so cancelled, less
applicable withholding taxes.
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(C) Each of the Executive's RS shall be cancelled in exchange for a
cash payment, as soon as practicable following the Closing, equal
to $18.75 per share subject to the RS.
(D) The "SPREAD" of a 2001 Plan Option or a 2004 Plan Option shall
mean the excess, if any, of (i) $18.75 over (ii) the per-share
exercise price thereof.
(ii) PURCHASED PARENT SHARES. 50% of the after-tax proceeds payable
to the Executive upon the Closing pursuant to each of clauses (B) and (C) of
Section 2.1(c)(i) shall be applied to purchase shares of common stock of the
Parent ("COMMON PARENT SHARES") and Series A 9.75 percent preferred stock of the
Parent ("PREFERRED PARENT SHARES") at the same price per share and in the same
proportion that the Investors (as defined in Section 2.1(c)(iii)(C)) purchase
such shares (such purchased Common Parent Shares and Preferred Parent Shares,
"PURCHASED PARENT SHARES").
(iii)NEW PARENT RESTRICTED SHARES. The Executive shall receive a
grant of a number of restricted Common Parent Shares as set forth on ATTACHMENT
1 ("NEW PARENT RESTRICTED SHARES") at or as soon as practicable following the
Closing, having the terms and conditions provided below and such other terms and
conditions not inconsistent therewith as may be provided for in the plan under
which they are granted. The New Parent Restricted Shares shall provide that upon
payment of any cash distribution or dividend on the Common Parent Shares to
Parent shareholders generally, the holder of such New Parent Restricted Shares
shall have credited to an escrow account an amount equal to the amount of cash
(which cash amount shall be credited with interest at the lesser of the interest
rate applicable to the Parent's revolving credit agreement, as in effect from
time to time, or 5% compound interest per annum) or other property that would
have been distributed to the Executive had the New Parent Restricted Shares not
been subject to restriction, which escrow account shall be distributable as of,
and will be distributed to the Executive as soon as practicable following
(subject to the provisions of Section 409A of the Internal Revenue Code of 1986,
as amended (the "CODE")), the date upon which such New Parent Restricted Shares
vest. It shall be a condition to the Executive's receipt of New Parent
Restricted Shares that he become a party to the Shareholders Agreement by and
among the Parent and the Shareholders named therein as in effect as of the
Closing (the "SHAREHOLDERS AGREEMENT"). The Executive acknowledges that the New
Parent Restricted Shares will be subject to the terms and conditions set forth
in this Agreement and shall be subject to a substantial risk of forfeiture and
restrictions on transferability.
(A) TIME-VESTING SHARES. 40.9 percent of the New Parent Restricted
Shares granted to the Executive hereunder (the "TIME-VESTING SHARES") shall vest
over sixty months with 10% of the Time Vesting Shares vesting on the first day
of the 7th month following the Closing and the remainder of the Time Vesting
Shares vesting in fifty-four equal months installments of 1.66% commencing on
the first day of the 8th month following the Closing, subject to the Executive's
continued employment on the date of vesting and to Section 4 below. Subject to
the Executive's continued employment, notwithstanding the foregoing, if "private
equity investors" own less than 40% of the aggregate equity interests, measured
by vote and value of the Parent ("PRIVATE EQUITY DILUTION"), then the Time
Vesting Shares will become fully vested on the later to occur of (x) the third
anniversary of the Closing or (y) twelve months following the transaction which
causes the Private Equity Dilution. For purposes of this Section
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2.1(c)(iii)(A), "private equity investors" shall mean the Investors (as defined
below) and any other similar entities or divisions of entities which are similar
type private equity investors including, without limitation, entities which
provide venture capital or long-term share capital in exchange for an ownership
interest in another entity.
(B) PERFORMANCE SHARES. An additional 40.9 percent of the New Parent
Restricted Shares granted to the Executive hereunder shall vest (less any such
percent of shares that have already vested) if and when the Investors have
received a Cumulative Total Return as set forth below (the "CUMULATIVE TOTAL
RETURN GOAL") between 2.5 to 3 times the amount invested by the Investors
collectively during the applicable period over which Cumulative Total Return
Goal is measured (the "PERFORMANCE PERIOD"), subject to the Executive's
continued employment as of the date, if any, that such Cumulative Total Return
is reached and to Section 4 below. The remainder of the New Parent Restricted
Shares granted to the Executive hereunder shall vest (less any such percent of
shares that have already vested) if and when the Investors have received a
Cumulative Total Return between 4 to 4.5 times the amount invested by the
Investors collectively during the Performance Period, subject to the Executive's
continued employment as of the date, if any, that such Cumulative Total Return
is reached and to Section 4 below (together with the New Parent Restricted
Shares described in the immediately preceding sentence, the "PERFORMANCE
SHARES"). If the Performance Shares remain outstanding but not yet vested as of
the eighth anniversary of the Closing, they shall be forfeited upon such
anniversary. If the Cumulative Total Return is between 2.5 to 3 times or 4 to
4.5 times the amount invested by the Investors, respectively, the number of
Performance Shares which shall vest shall be interpolated and rounded to the
nearest whole share.
(C) CUMULATIVE TOTAL RETURN. The "CUMULATIVE TOTAL RETURN" means the
sum (net of all transaction and valuation costs) of (i) all dividends and other
distributions (including management fees) paid to the Investors with respect to
Common Parent Shares and Preferred Parent Shares, (ii) the gross proceeds of any
sale of Common Parent Shares and Preferred Parent Shares by any of the
Investors, and (iii) solely for purposes of determining Cumulative Total Return
as of the eighth anniversary of the Closing, the fair market value of the Common
Parent Shares and Preferred Parent Shares held by the Investors on the eighth
anniversary of the Closing (the "FAIR MARKET VALUE"), which will be determined
by the Compensation Committee in its sole reasonable discretion. Notwithstanding
anything in this Agreement to the contrary, upon a corporate transaction in
which all of the Common Parent Shares and Preferred Parent Shares are converted
into the right to receive cash, Cumulative Total Return shall be finally
determined and there shall be no further opportunity to vest in any Performance
Shares. The "INVESTORS" means each of the members of the Investor Group as
defined in the Shareholders Agreement.
(D) ADJUSTMENT. In the event of any stock split, reverse stock split,
dividend, merger, consolidation, recapitalization or similar event affecting the
capital structure of the Parent, the number and kind of shares (or other
property, including without limitation cash) subject to the New Parent
Restricted Shares shall be equitably adjusted to prevent the dilution or
enlargement of the value of the Executive's New Parent Restricted Shares (taking
into account the amounts set aside in the escrow account as a result of such
event).
(d) EXPATRIATE BENEFITS AND PERQUISITES. During the Employment
Period, the Executive shall be entitled to the expatriate benefits and
perquisites set forth on ATTACHMENT 1.
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(e) TRANSACTION-RELATED BONUS. The Executive shall be eligible to
receive a cash bonus, based upon the achievement of the goals set forth in
Schedule 2 hereto (the "PERFORMANCE GOALS"), in accordance with the terms of
such schedule, which shall be payable on the Closing with respect to the
Performance Goals that are achieved and verified as of the Closing, and as soon
as practicable following the date that such Performance Goals are achieved and
verified during the Employment Period with respect to any other Performance
Goals. For the avoidance of doubt, and notwithstanding anything herein to the
contrary, any bonus payable pursuant to this Section 2.1(e) shall not be taken
into account in computing any benefits under any plan, program or arrangement of
the Company or its Affiliates.
(f) BENEFITS. During the Employment Period, the Executive shall be
eligible to participate, on the same basis and at the same level as other
similarly situated senior executives of the Company generally, in any group
insurance, hospitalization, medical, vision, health and accident, disability,
life insurance and enhanced executive life insurance, fringe benefit and
retirement plans or programs of the Company now existing or hereafter
established to the extent that he is eligible under the general provisions
thereof (including eligibility provisions relating to pre-privatization and
post-privatization employment status). The Executive shall receive credit for
service prior to the Closing for all purposes to the extent provided in Section
3.8(b) of the Transaction Agreement. During the Employment Period, the Executive
shall be entitled to a number of days of vacation time annually as set forth on
ATTACHMENT 1, consistent with the Company's policies at such time as may be
mutually agreed by the parties hereto.
(g) EXPENSES. During the Employment Period, pursuant to the Company's
customary reimbursement policies in force at the time of payment, the Executive
shall be promptly reimbursed, subject to the Executive's presentation of
vouchers or receipts therefor, for all expenses incurred by the Executive on
behalf of the Company in the performance of the Executive's duties hereunder.
(h) EXECUTIVE AUTOMOBILE BENEFITS. During the Employment Period, the
Company shall continue to provide the Executive with automobile benefits
consistent with the level of such benefits as in effect on the date hereof.
3. EMPLOYMENT PERIOD. The Executive's employment under this Agreement
shall commence as of the Closing, and shall terminate on the first anniversary
thereof, unless terminated earlier pursuant to Section 4 (the "INITIAL
EMPLOYMENT PERIOD"). Unless written notice of either party's desire to terminate
this Agreement has been given to the other party at least ninety days but no
more than one hundred and twenty days prior to the expiration of the Initial
Employment Period (or any renewal thereof contemplated by this sentence), the
term of the Executive's employment hereunder shall be automatically renewed for
successive one-year periods (such term, including the Initial Employment Period,
as it may be extended, the "EMPLOYMENT PERIOD"). A notice of non-renewal
provided by the Company shall be treated as a termination by the Company without
Cause for purposes of Sections 4.4(a), (b), (c) and (d) (and the Company shall
have no additional obligation other than the payment of the Executive's earned
but unpaid compensation through the effective date of such termination, except
as otherwise required by law or the terms of the Company's benefit plans), and a
notice of non-renewal provided by the Executive shall be treated as a
termination by the Executive without Good Reason for purposes of Section 4.6.
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4. TERMINATION AND FORFEITURE OF PAYMENTS AND BENEFITS.
4.1 TERMINATION BY THE COMPANY FOR CAUSE. The Executive's employment
with the Company may be terminated at any time by the Company for Cause. Upon
such a termination, the Company shall have no obligation to the Executive
pursuant to this Agreement other than the payment of the Executive's earned and
unpaid compensation through the effective date of such termination, except as
otherwise required by law or by the terms of the Company's benefit plans. All
New Parent Restricted Shares (and the related escrow account) that have not yet
been vested (or paid, as applicable) as of the date of termination, shall be
forfeited as of the date of termination. Any Purchased Parent Shares may be
repurchased by the Company at any time following such termination of employment
at a price per Purchased Parent Share equal to the lesser of (i) the greater of
(x) the Fair Market Value of such Purchased Parent Share on the date of the most
recent valuation prior to such termination minus (y) the value of any dividends,
distributions, or dividend equivalents previously paid to the Executive in
respect of such Purchased Parent Share (subject to equitable adjustment in
Parent's discretion to reflect dividends, distributions, corporate transactions,
or similar events, to the extent not reflected in (y)) or $0, or (ii) (x) the
amount paid by the Executive to purchase such Purchased Parent Share minus (y)
the value of any dividends, distributions, or dividend equivalents previously
paid to the Executive in respect of such Purchased Parent Share (subject to
equitable adjustment in Parent's discretion to reflect dividends, distributions,
corporate transactions, or similar events, to the extent not reflected in (y))
but in no event less than $0, and any Common Parent Shares held by the Executive
as a result of the vesting of New Parent Restricted Shares shall be cancelled
and no payment shall be made to the Executive for such Common Parent Shares.
For purposes of this Agreement, the term "CAUSE" shall mean any of
the following: (i) the Executive's failure to perform materially his duties
under the Agreement (other than by reason of illness or disability), (ii) the
Executive's commission of, or plea of no contest to, a felony or his commission
of, or plea of no contest to, any other crime involving moral turpitude or his
commission of a material dishonest act or fraud against the Company or any of
its Affiliates, (iii) any act or omission by the Executive that is the result of
his misconduct or gross negligence and that is, or may reasonably be expected to
be, materially injurious to the financial condition, business or reputation of
the Company or any of its Affiliates, or (iv) the Executive's breach of any
material provision of this Agreement. Any such occurrence described in clause
(i) or (iv) of the preceding sentence that is curable shall constitute "CAUSE"
only after the Company has given the Executive written notice of, and twenty
(20) business days' opportunity to cure, such violation, and then only if such
occurrence is not cured.
4.2 PERMANENT DISABILITY. If, during the Employment Period, the
Executive becomes disabled within the meaning of the Company's applicable
long-term disability plan, the Company shall have the right to terminate the
Executive's employment with the Company upon written notice to the Executive.
Upon such a termination, the Company shall have no obligation to the Executive
other than to pay the Executive's earned and unpaid compensation through the
effective date of such termination and to treat the New Parent Restricted Shares
as described below in this Section 4.2, except as otherwise required by law or
by the terms of the Company's benefit plans. Any Time-Vesting Shares (and the
related escrow account) that are not vested as of the date of termination shall
vest as of the date of termination. If the Performance Shares (and the related
escrow account) are not vested as of the date of termination, the Performance
Shares
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(and the related escrow account) will remain outstanding and if the Investors
meet the Cumulative Total Return Goal prior to the eighth anniversary of the
Closing, the Executive will vest in a number of Performance Shares (and the
related escrow account), at such time as each applicable Cumulative Total Return
Goal is met, equal to the difference between (1) the product of (x) the total
number of Performance Shares which would have been vested as of the date of the
determination had the Executive remained employed through such date and (y) a
fraction, the numerator of which is the period of time that the Executive was
employed by the Company from the Closing and the denominator of which is the
period of time from the Closing until the applicable Cumulative Total Return
Goal is met, and (2) any Performance Shares that already vested. All other
Performance Shares (and the related escrow account) will be forfeited. If the
Performance Shares (and the related escrow account) remain outstanding but not
yet vested as of the eighth anniversary of the Closing, they shall be forfeited.
Section 4.4(d) shall apply to Company repurchases of Common Parent Shares held
by the Executive as a result of the vesting of New Parent Restricted Shares and
to Company repurchases of Purchased Parent Shares. Notwithstanding the
foregoing, the Compensation Committee, in its sole discretion, may permit the
vesting of any Performance Shares (and the related escrow account) that are not
vested as of the date of termination.
4.3 DEATH. The Executive's employment with the Company shall
terminate automatically upon the death of the Executive and the Company shall
have no obligation to the Executive or the Executive's estate other than to pay
the Executive's earned and unpaid compensation through the date of the
Executive's death, and to treat the New Parent Restricted Shares as described
below in this Section 4.3, except as otherwise required by law or by the terms
of the Company's benefit plans. Any Time-Vesting Shares (and the related escrow
account) that are not vested as of the date of death shall vest as of the date
of death. If the Performance Shares (and the related escrow account) are not
vested as of the date of death, the Performance Shares (and the related escrow
account) will remain outstanding and if the Investors meet the Cumulative Total
Return Goal prior to the eighth anniversary of the Closing, the Executive will
vest in a number of Performance Shares (and the related escrow account), at such
time as each applicable Cumulative Total Return Goal is met, equal to the
difference between (1) the product of (x) the total number of Performance Shares
which would have been vested as of the date of the determination had the
Executive remained employed through such date and (y) a fraction, the numerator
of which is the period of time that the Executive was employed by the Company
from the Closing and the denominator of which is the period of time from the
Closing until the applicable Cumulative Total Return Goal is met, and (2) any
Performance Shares that already vested. All other Performance Shares (and the
related escrow account) will be forfeited. If the Performance Shares (and the
related escrow account) remain outstanding but not yet vested as of the eighth
anniversary of the Closing, they shall be forfeited. Section 4.4(d) shall apply
to the Company repurchases of Common Parent Shares held by the Executive as a
result of the vesting of New Parent Restricted Shares and to Company repurchases
of Purchased Parent Shares. Notwithstanding the foregoing, the Compensation
Committee, in its sole discretion, may permit the vesting of any Performance
Shares (and the related escrow account) that are not vested as of the date of
termination.
4.4 TERMINATION BY THE COMPANY WITHOUT CAUSE. The Executive's
employment with the Company may be terminated at any time by the Company without
Cause. In such event, the Executive shall have the rights set forth in the
subparagraphs below.
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(a) SEVERANCE. Subject to the Executive's continued compliance with
his obligations under this Agreement, the Company shall have no obligation to
the Executive other than: (i) the payment of the Executive's earned and unpaid
compensation through the effective date of such termination; (ii) the payment of
any deferred bonus, subject to the provisions of Section 409A of the Code; (iii)
the payment of an amount equal to the sum of the Executive's annual Base Salary
plus the Executive's Maximum Bonus Amount (as in effect as of the date of
termination), 50% of which shall be paid to the Executive upon the first
business day following the six month anniversary of the date of termination of
employment and the remainder of which shall be paid to the Executive in equal
installments each month thereafter for six months; (iv) treatment of the New
Parent Restricted Shares (and, if applicable, Purchased Parent Shares) as
described below in Section 4.4(b), (c) and (d); (v) subject to the provisions of
Section 409A of the Code, immediate payout of benefits previously accrued under
the Company's Supplemental Executive Retirement Plan and (vi) executive
outplacement benefits, except as otherwise required by law or by the terms of
the Company's benefit plans (excluding severance plans); PROVIDED, that in the
event that such termination is within six months following the Closing, (A) in
lieu of the benefit set forth in clause (iii), the Company shall pay the
Executive a lump sum cash amount equal to the product of (x) the multiple set
forth on ATTACHMENT 1 and (y) the sum of the Executive's annual base salary and
the Executive's target bonus amount (each, as in effect as of immediately prior
to the Closing), (B) in lieu of the benefit set forth in clause (iv) with
respect to any Purchased Parent Shares, any Purchased Parent Shares shall be
returned to the Company in exchange for a refund of the full purchase price
within 30 days following such return and (C) in lieu of the benefit set forth in
clause (iv) with respect to any Purchased Parent Shares, the Executive will be
paid a lump sum cash amount within 30 days following the date of termination of
employment equal to any amount withheld by the Company in connection with any
Section 83(b) election made by the Executive with respect to the New Parent
Restricted Shares; PROVIDED, FURTHER, that in the event that such termination is
on or after the date that is six months after the Closing but prior to the first
anniversary of the Closing, in lieu of the benefit set forth in clause (iii) and
the benefits set forth in clause (A) in the immediately preceding proviso, the
Company shall pay the Executive over a 24-month period in equal monthly
installments the product of (x) two and (y) the sum of the Executive's annual
Base Salary plus the Executive's Maximum Bonus Amount (as in effect as of the
date of termination). In the event that the Executive is eligible to receive the
severance benefits provided for by this Section 4.4(a), the Executive shall not
be eligible to receive severance benefits under any other Company plan, policy,
or agreement.
(b) TIME-VESTING SHARES. Any unvested Time-Vesting Shares (and the
related escrow account) shall be forfeited as of the date of termination;
PROVIDED, that if the termination without Cause occurs within the six-month
period after a Change of Control (as defined in Section 4.8 below), all unvested
Time-Vesting Shares (and the related escrow account) shall vest as of the date
of termination.
(c) PERFORMANCE SHARES. If the Performance Shares (and the related
escrow account) are not vested as of the date of termination, they shall remain
outstanding until the 180th day following the date of termination, and if still
unvested as of such day, shall be forfeited; PROVIDED, that in the event that
such termination is within six months following a merger of the Company with or
into, an acquisition by the Company of, or an acquisition of the Company by, any
of the entities set forth on EXHIBIT 3 or any transaction involving the
Company's subsidiaries
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to effectuate the foregoing, the Performance Shares (and the related escrow
account) will remain outstanding and if the Investors meet the Cumulative Total
Return Goal prior to the eighth anniversary of the Closing, the Executive will
vest in a number of Performance Shares (and the related escrow account), at such
time as each applicable Cumulative Total Return Goal is met, equal to the
difference between (1) the product of (x) the total number of Performance Shares
which would have been vested as of the date of the determination had the
Executive remained employed through such date and (y) a fraction, the numerator
of which is the period of time that the Executive was employed by the Company
from the Closing and the denominator of which is the period of time from the
Closing until the applicable Cumulative Total Return Goal is met, and (2) any
Performance Shares that have already vested. All other Performance Shares (and
the related escrow account) will be forfeited. If the Performance Shares (and
the related escrow account) remain outstanding but not yet vested as of the
eighth anniversary of the Closing, they shall be forfeited.
(d) REPURCHASE RIGHT. Any (i) Common Parent Shares held by the
Executive as a result of the vesting of New Parent Restricted Shares may be
repurchased by the Company at any time during the two-year period following (x)
the date of termination of employment in the event such Common Parent Shares
were vested as of such termination and (y) the vesting of Common Parent Shares
in the event such vesting occurred after the date of termination of employment,
and (ii) Purchased Parent Shares may be repurchased by the Company at any time
following the second anniversary of the date of termination of employment, each
at a price per share equal to the Fair Market Value of such share as determined
on the date of the most recent valuation prior to such termination, PROVIDED,
that Common Parent Shares vesting after termination of employment shall be
purchased at a price per share equal to the Fair Market Value of such share as
determined on the date of the most recent valuation prior to the applicable
vesting event.
4.5 TERMINATION BY THE EXECUTIVE FOR GOOD REASON. (a) During the
Employment Period, the Executive's employment with the Company may be terminated
by the Executive for Good Reason, if the Executive provides the Company with
notice within 90 days following the Executive's knowledge of the event
constituting Good Reason. In the event that the Executive terminates his
employment with the Company for Good Reason, the Executive shall be entitled to
the same payments and benefits that he would have been entitled to receive under
Section 4.4 if his employment had been terminated by the Company without Cause
and the Company shall be entitled to the repurchase rights thereunder.
(b) For purposes of this Agreement, the term "GOOD REASON" shall mean
any of the following conditions or events without the Executive's prior consent:
(i) a material diminution of the Executive's position or responsibilities that
is inconsistent with the Executive's title (PROVIDED that (x) any change in the
Executive's position or responsibilities that occurs as a result of a corporate
transaction or (y) any change in the Executive's position or responsibilities
pursuant to an internal reorganization, in each case, following which the
Executive's level of position at the Company is not materially diminished shall
not give rise to Good Reason under clause (i) or (ii) of this definition), (ii)
a material breach by the Company of any terms of the Agreement, (iii) a
reduction in the Executive's base salary or bonus potential other than as
provided in ATTACHMENT 1, or the failure to pay the Executive any material
amount of compensation when due, or, (iv) a relocation of the Executive's
principal place of business more
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than fifty (50) miles away from the location set forth as the Executive's
principal place of business in Section 1.3. Any such occurrence shall constitute
"GOOD REASON" only after the Executive has given the Company written notice of,
and twenty (20) business days' opportunity to cure, such violation, and then
only if such occurrence is not cured.
4.6 TERMINATION BY THE EXECUTIVE WITHOUT GOOD REASON. The Executive
may voluntarily resign from his employment with the Company without Good Reason,
PROVIDED that the Executive shall provide the Company with ninety (90) days'
advance written notice (which notice requirement may be waived, in whole or in
part, by the Company in its sole discretion) of his intent to terminate. Upon
such a termination, the Company shall have no obligation other than the payment
of the Executive's earned but unpaid compensation through the effective date of
such termination, except as otherwise required by law or by the terms of the
Company's benefit plans. All unvested New Parent Restricted Shares shall be
immediately forfeited. Any Common Parent Shares held by the Executive as a
result of the vesting of New Parent Restricted Shares and any Purchased Parent
Shares may be repurchased by the Company at any time following such termination
of employment at a purchase price per share equal to the lesser of (i) the
greater of (x) the Fair Market Value of such share on the date of the most
recent valuation prior to such termination minus (y) the value of any dividends,
distributions, or dividend equivalents previously paid to the Executive in
respect of such share (subject to equitable adjustment in Parent's discretion to
reflect dividends, distributions, corporate transactions, or similar events, to
the extent not reflected in (y)) or $0, or (ii) (x) Fair Market Value at Closing
based on the Valuation Research valuation as of Closing (for Common Parent
Shares held by the Executive as a result of the vesting of New Parent Restricted
Shares) or the amount paid by the Executive to purchase such Purchased Parent
Shares (for Purchased Parent Shares) minus (y) the value of any dividends,
distributions, or dividend equivalents previously paid to the Executive in
respect of such share (subject to equitable adjustment in Parent's discretion to
reflect dividends, distributions, corporate transactions, or similar events, to
the extent not reflected in (y)) but in no event less than $0.
4.7 RELEASE OF CLAIMS AND COOPERATION. As a condition to receiving
the payments set forth in Section 4.4 or Section 4.5 upon a termination by the
Company without Cause (or upon a notice of non-renewal by the Company) or by the
Executive for Good Reason, the Executive shall be required to execute and not
revoke a waiver and release of claims in favor of the Company and its
Affiliates, in the form attached hereto as Exhibit A and, for a 180-day period
following such employment termination, shall make himself reasonably available
to provide transition services and consultation to the Company, subject to his
other business and personal commitments.
4.8 DEFINITION OF CHANGE OF CONTROL. A "CHANGE OF CONTROL" shall mean
(i) the acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
from time to time) not affiliated with the Parent or its owners immediately
prior to such acquisition of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of more than 50%, indirectly or
directly, of the equity vote of the Parent (other than any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any Affiliate) or (ii) consummation of an amalgamation, a merger or
consolidation of the Parent or any direct or indirect subsidiary thereof with
any other entity or a sale or other disposition of all
10
or substantially all of the assets of the Parent following which the voting
securities of the Parent that are outstanding immediately prior to such
transaction cease to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity (or the entity that
owns substantially all of the Parent's assets either directly or through one or
more subsidiaries) or any parent or other Affiliate thereof) at least 50% of the
combined voting power of the securities of the Parent or, if the Parent is not
the surviving entity, such surviving entity (or the entity that owns
substantially all of the Parent's assets either directly or through one or more
subsidiaries) or any parent or other Affiliate thereof, outstanding immediately
after such transaction.
4.9 RESIGNATION. Upon a termination of employment, the Executive will
upon the Company's request resign from all boards of directors and officer
positions of the Company and any of its Affiliates.
5. COVENANTS.
5.1 The Executive understands that, in the course of his or her
employment with the Company, he or she will be given access to confidential
information and trade secrets including, but not limit to, discoveries, ideas,
concepts, software in various stages of development, designs, drawings,
specifications, techniques, models, data, source code, object code,
documentation, diagrams, flowcharts, research, development, processes,
procedures, "know-how," marketing techniques and materials, marketing and
development plans, business plans, merger or acquisition investigations,
customer names and other information relating to customers, price lists, pricing
policies, and financial information ("CONFIDENTIAL INFORMATION"). Confidential
Information also includes any information described above which the Company
obtains from another party and which the Company treats as proprietary or
designates as Confidential Information, whether or not owned or developed by the
Company. The Executive agrees that during his employment by the Company and
thereafter to hold in confidence and not to directly or indirectly reveal,
report, publish, disclose, or transfer any Confidential Information to any
person or entity, or utilize any Confidential Information for any purpose,
except in the course of the Executive's work for the Company. The Executive
agrees to turn over all copies of Confidential Information in his control to the
Company upon request or upon termination of his employment with the Company. For
purposes of this Section 5.1, the "Company" shall include Affiliates of the
Company. The Executive agrees to enter into as of the Closing the Company's
general Conflict of Interest and Confidentiality Agreement set forth on EXHIBIT
B.
5.2 The Executive agrees that, during his employment with the Company
and for one (1) year thereafter (the "RESTRICTED PERIOD"), he will not, either
directly or indirectly, hire Company employees or former employees (which shall
for this purpose include any individual employed by the Company at any point
during the year preceding such hiring), induce, persuade, solicit or attempt to
induce, persuade, or solicit any of the Company's employees to leave the
Company's employ, nor will he help others to do so. This means, among other
things, that if the Executive's employment with the Company terminates (whether
voluntarily or involuntarily), he shall refrain for one (1) year from giving any
person or entity the names of his former, fellow employees or any information
about them, as well as refrain from in any way helping any person or entity hire
any of his former, fellow employees away from the Company. This shall not be
11
construed to prohibit general solicitations of employment through the placing of
advertisements. For purposes of this Section 5.2, Company shall include
Affiliates of the Company.
5.3 The Executive agrees that, during the Restricted Period, he shall
not, without the prior written consent of the Board, engage in or become
associated with any business or other endeavor engaged in or competitive with
the businesses (the "PROTECTED BUSINESSES") conducted by the Company or its
Affiliates (which Protected Businesses include, without limitation, the
provision of FSS services on a retail basis, a wholesale basis and on a
distributor basis); provided, that, the Protected Businesses shall not include
any other businesses of an entity (i) directly or indirectly owned or controlled
by any Investor (unless those businesses are businesses of the Company or any of
its Subsidiaries or businesses of other entities in which the Company, directly
or indirectly, owns 20% or more of the equity interests) or (ii) in which the
Company, directly or indirectly, owns less than 20% of the equity interests. For
these purposes, the Executive shall be considered to have become "associated
with" a business or other endeavor if the Executive becomes directly or
indirectly involved as an owner, principal, employee, officer, director,
independent contractor, representative, stockholder, financial backer, agent,
partner, advisor, lender, or in any other individual or representative capacity
with any individual, partnership, corporation or other organization that is
engaged in that business. The foregoing shall not be construed to forbid the
Executive from making or retaining investments in less than one percent of the
equity of any entity, if such equity is listed on a national securities exchange
or regularly traded in an over-the-counter market.
5.4 The Executive agrees that during and after his employment by the
Company, the Executive will assist the Company and its Affiliates in the defense
of any claims, or potential claims that may be made or threatened to be made
against the Company or any of its Affiliates in any action, suit or proceeding,
whether civil, criminal, administrative, investigative or otherwise (a
"PROCEEDING"), and will assist the Company and its Affiliates in the prosecution
of any claims that may be made by the Company or any of its Affiliates in any
Proceeding, to the extent that such claims may relate to the Executive's
employment or the period of the Executive's employment by the Company. The
Executive agrees, unless precluded by law, to promptly inform the Company if the
Executive is asked to participate (or otherwise become involved) in any
Proceeding involving such claims or potential claims. The Executive also agrees,
unless precluded by law, to promptly inform the Company if the Executive is
asked to assist in any investigation (whether governmental or otherwise) of the
Company or any of its Affiliates (or their actions), regardless of whether a
lawsuit has then been filed against the Company or any of its Affiliates with
respect to such investigation. The Company agrees to reimburse the Executive for
all of the Executive's reasonable out-of-pocket expenses associated with such
assistance, including lost wages or other benefits, travel expenses and any
attorneys' fees.
5.5 The Company and the Executive acknowledge that the time, scope,
geographic area and other provisions of this Section 5 have been specifically
negotiated by sophisticated commercial parties and agree that all such
provisions are reasonable under the circumstances of the activities contemplated
by this Agreement. The Executive acknowledges and agrees that the terms of this
Section 5: (i) are reasonable in light of all of the circumstances, (ii) are
sufficiently limited to protect the legitimate interests of the Company and its
Affiliates, (iii) impose no undue hardship on the Executive and (iv) are not
injurious to the public. The
12
Executive further acknowledges and agrees that (x) the Executive's breach of the
provisions of this Section 5 will cause the Company irreparable harm, which
cannot be adequately compensated by money damages, and (y) if the Company elects
to prevent the Executive from breaching such provisions by obtaining an
injunction against the Executive, there is a reasonable probability of the
Company's eventual success on the merits. The Executive consents and agrees that
if the Executive commits any such breach or threatens to commit any breach, the
Company shall be entitled to temporary and permanent injunctive relief from a
court of competent jurisdiction, without posting any bond or other security and
without the necessity of proof of actual damage, in addition to, and not in lieu
of, such other remedies as may be available to the Company for such breach,
including the recovery of money damages. The parties hereto acknowledge and
agree that the provisions of Section 7.9 below are accurate and necessary
because (A) this Agreement is entered into in the District of Columbia, (B) as
of the Closing, the District of Columbia will have a substantial relationship to
the parties hereto and to the transactions contemplated by the Transaction
Agreement, (C) the use of District of Columbia law provides certainty to the
parties hereto in any covenant litigation in the United States, and (D)
enforcement of the provisions of this Section 5 would not violate any
fundamental public policy of the District of Columbia or any other jurisdiction.
In the event that the agreements in this Section 5 shall be determined by any
court of competent jurisdiction to be unenforceable by reason of their extending
for too great a period of time or over too great a geographical area or by
reason of their being too extensive in any other respect, they shall be
interpreted to extend only over the maximum period of time for which they may be
enforceable and/or over the maximum geographical area as to which they may be
enforceable and/or to the maximum extent in all other respects as to which they
may be enforceable, all as determined by such court in such action.
6. NOTICES. Any notice or communication given by either party hereto
to the other shall be in writing and personally delivered or mailed by
registered or certified mail, return receipt requested, postage prepaid, or by
facsimile, to the following addresses:
if to the Company:
Intelsat, Ltd.
Xxxxx Xxxxx, 0xx Xxxxx
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00, Bermuda
Telecopy: x000-000-0000
Attention: Chief Executive Officer
and:
Intelsat Global Service Corporation
0000 Xxxxxxxxxxxxx Xxxxx, XX
Xxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: General Counsel and Executive Vice President for
Regulatory Affairs
13
If to the Parent:
Zeus Holdings Limited
Canon's Court, 22 Victoria Street
Xxxxxxxx, XX EX Bermuda
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: President c/o Xxxxx Xxxxxxxx
Xxxxxx Xxxxxxx
With a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Silk, Esq.
Xxxx Xxxxxx, Esq.
if to the Executive:
The most recent address on file for the Executive at the Company.
With a copy to:
Xxxxxx X. Xxxxxxxxxx, Esq.
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
000-000-0000 (facsimile)
Any notice shall be deemed given when actually delivered to such
party at the designated address, or five days after such notice has been mailed
or sent by overnight courier or when sent by facsimile with printed
confirmation, whichever comes earliest. Any person entitled to receive notice
may designate in writing, by notice to the other, such other address to which
notices to such person shall thereafter be sent.
7. MISCELLANEOUS.
7.1 REPRESENTATION. No agreements or obligations exist to which the
Executive is a party or otherwise bound, in writing or otherwise, that in any
way interfere with, impede or preclude him from fulfilling all of the terms and
conditions of this Agreement.
7.2 ENTIRE AGREEMENT. This Agreement and the documents incorporated
by reference herein, including, without limitation, the Prior Agreements, if
any, specified on ATTACHMENT 1, contain the entire understanding of the parties
in respect of their subject matter
14
and supersede upon their effectiveness all other prior plans, arrangements,
agreements and understandings, including, without limitation, the Prior
Agreement between the parties with respect to such subject matter, and including
any rights the Executive may have under the Company's annual incentive
compensation plan for 2004.
7.3 AMENDMENT; WAIVER. This Agreement may not be amended,
supplemented, canceled or discharged, except by written instrument executed by
the party against whom enforcement is sought. No failure to exercise, and no
delay in exercising, any right, power or privilege hereunder shall operate as a
waiver thereof. No waiver of any breach of any provision of this Agreement shall
be deemed to be a waiver of any preceding or succeeding breach of the same or
any other provision.
7.4 BINDING EFFECT; ASSIGNMENT. The rights and obligations of this
Agreement shall bind and inure to the benefit of any successor of the Company by
reorganization, merger or consolidation, or any assignee of all or substantially
all of the Company's business and properties. The Company may assign its rights
and obligations under this Agreement to any of its Affiliates without the
consent of the Executive. The Executive's rights or obligations under this
Agreement may not be assigned by the Executive.
7.5 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
7.6 GOVERNING LAW; INTERPRETATION. This Agreement shall be construed
in accordance with and governed for all purposes by the laws and public policy
(other than conflict of laws principles) of the District of Columbia applicable
to contracts executed and to be wholly performed therein.
7.7 FURTHER ASSURANCES. Each of the parties agrees to execute,
acknowledge, deliver and perform, and cause to be executed, acknowledged,
delivered and performed, at any time and from time to time, as the case may be,
all such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and assurances as may be reasonably necessary to carry out the
provisions or intent of this Agreement.
7.8 SEVERABILITY. The parties have carefully reviewed the provisions
of this Agreement and agree that they are fair and equitable. However, in light
of the possibility of differing interpretations of law and changes in
circumstances, the parties agree that if any one or more of the provisions of
this Agreement shall be determined by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the provisions of this
Agreement shall, to the extent permitted by law, remain in full force and effect
and shall in no way be affected, impaired or invalidated. Moreover, if any of
the provisions contained in this Agreement are determined by a court of
competent jurisdiction to be excessively broad as to duration, activity,
geographic application or subject, it shall be construed, by limiting or
reducing it to the extent legally permitted, so as to be enforceable to the
extent compatible with then applicable law.
7.9 DISPUTE RESOLUTION. Arbitration will be the method of resolving
disputes under the Agreement, other than disputes arising under Section 5. All
arbitrations arising out of
15
this Agreement shall be conducted in Washington, D.C. Subject to the following
provisions, the arbitration shall be conducted in accordance with the rules of
the American Arbitration Association (the "ASSOCIATION") then in effect. Any
award entered by the arbitrators shall be final, binding and nonappealable and
judgment may be entered thereon by either party in accordance with applicable
law in any court of competent jurisdiction. This arbitration provision shall be
specifically enforceable. The arbitrators shall have no authority to modify any
provision of this Agreement or to award a remedy for a dispute involving this
Agreement other than a benefit specifically provided under or by virtue of the
Agreement. Each party shall be responsible for its own expenses relating to the
conduct of the arbitration (including reasonable attorneys' fees and expenses)
and shall share the fees of the Association equally.
7.10 LEGAL FEES. The Company will promptly reimburse the Executive
for all reasonable and documented legal fees and related expenses incurred in
connection with the drafting, negotiation and execution of this Agreement and
the other documents relating to the equity arrangements contemplated hereunder.
7.11 INDEMNIFICATION. The Company will, to a degree no less favorable
than would be applicable under its policies and contractual obligations to the
Executive as of immediately prior to the Closing, indemnify and hold the
Executive harmless from any and all liability arising from his good faith
performance of services as an employee, officer, or director of the Company. In
addition, the Executive will have the benefit of coverage under any D&O
insurance policy that the Company may have in place to the same extent as
similarly situated executives of the Company.
7.12 WITHHOLDING TAXES. All payments hereunder shall be subject to
any and all applicable federal, state, local and foreign withholding taxes and
all other applicable withholding amounts. Without limiting the generality of the
foregoing, all cash payments to the Executive for 2001 Plan Options, 2004 Plan
Options and RS shall be subject to applicable withholding, and the delivery of
Common Parent Shares upon vesting of New Parent Restricted Shares shall be
conditioned upon the Executive's satisfaction of all applicable withholding
requirements by direct payment to the Parent, withholding from cash payments
otherwise due to the Executive, or a combination thereof.
7.13 COUNTERPARTS. This Agreement may be executed in or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute the same instrument.
8. EXCISE TAX TREATMENT. If the amount of payment made under this
Agreement or otherwise would trigger the 20% excise tax under the "golden
parachute" limits of Section 4999 of the Code, then the amount of severance
payments under Section 4.4(a)(iii) (or severance under Section 4.4(a)
specifically paid in lieu of severance under Section 4.4(a)(iii)) will be
automatically scaled back (but not below zero) if and to the extent that the
payments do not exceed the "golden parachute" limits of Code Section 280G, as
long as the net effect of the reduction is that, on an after-tax basis (taking
into account federal, state and local income tax and the 20% excise tax and any
interest and penalties imposed with respect thereto), the Executive is receiving
more from the reduced severance payments than from the higher severance payments
that would have been subject to the 20% excise tax. Notwithstanding the
foregoing, however, if
16
the net effect of the reduction in severance payments under Section 4.4(a)(iii)
of this Agreement (or severance under Section 4.4(a) specifically paid in lieu
of severance under Section 4.4(a)(iii)) is such that, on an after-tax basis, the
Executive would not be receiving more from the reduced severance payments than
from the higher amount of severance that would have been subject to the 20%
excise tax under Code Section 4999, then, solely as a result of any 20% excise
tax under Code Section 4999 that arises from the transactions contemplated by
the Transaction Agreement, the Company shall pay to Executive the higher amount
of severance payments payable under Section 4.4(a)(iii) of this Agreement, plus
an additional "gross up" payment in an amount such that, after payment by the
Executive of all taxes (including, without limitation, any income taxes and
interest and penalties imposed with respect thereto) and the 20% excise tax
under Code Section 4999 on such severance payments and the gross up payment, the
Executive retains an amount of the gross up payment equal to the excise tax
imposed upon the severance payments. Any gross-up payment shall be paid by the
Company to the Executive within a reasonable period of time after the amount of
such gross-up payment has been calculated. All determinations and calculations
required to be made under this Section 8 shall be made by a certified public
accounting firm servicing the Company, and such determinations shall be final
and binding upon the Company and the Executive.
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
THE COMPANY
By:
---------------------------------
THE PARENT
By:
---------------------------------
THE EXECUTIVE
------------------------------------
Xxxx Xxxxxxxx
18
ATTACHMENT 1
XXXX XXXXXXXX
-------------------------------------------------------------------------------
Position Executive Vice President and Chief
Administrative Officer Intelsat Global Service
Corporation
-------------------------------------------------------------------------------
Reporting Person Chief Executive Officer of Intelsat Ltd.
-------------------------------------------------------------------------------
Outside Activities Company representative as a member of the board
of directors of (x) the United States
Telecommunications Training Institute, (y) the
Satellite Industry Association and (z) the
Xxxxxx X. Xxxxxx Foundation of the United States
-------------------------------------------------------------------------------
Annual Base Salary $320,000
-------------------------------------------------------------------------------
Maximum Bonus 50%
Percentage
-------------------------------------------------------------------------------
Number of New 0.41%
Parent Restricted
Shares
-------------------------------------------------------------------------------
Vacation Days 25 with a maximum accrual limit of 60 days
-------------------------------------------------------------------------------
Expatriate Benefits The Company shall continue to reimburse the
and Perquisites Executive for his membership in the Georgetown
Club, the Metropolitan Club and the Carlton Club to the
same extent as the Company reimbursed the Executive for
such membership as of immediately prior to the Closing,
subject to a reasonable cap as determined by the Company.
-------------------------------------------------------------------------------
Multiple 2
-------------------------------------------------------------------------------
Prior Agreements Intelsat Change of Control Severance Program,
effective as of June 1, 2004 and the
accompanying individual agreement
Employment Agreement, dated as of October 24, 2001
-------------------------------------------------------------------------------
S-1
SCHEDULE 1
OPTIONS AND RESTRICTED STOCK (XXXX XXXXXXXX)
2001 PLAN OPTIONS
50,523 ($41,205.66)
2004 PLAN OPTIONS
141,500 ($813,625)
RESTRICTED STOCK
20,000 ($375,000)
S-2
SCHEDULE 2
Transaction Related Bonus
1. Subject to the terms and conditions of this Schedule 2, the Executive
shall be eligible to receive a one-time bonus (the "Transaction Bonus")
equal to the sum of (i) the Cash on Balance Sheet Bonus, (ii) the Headcount
Bonus, (iii) the EBITDA Bonus, (iv) the Revenue Backlog Bonus, (v) the
Orbit Act Bonus, and (vi) the Retiree Medical Bonus (all as defined below,
with (i-iv) collectively referred to hereinafter as the "Financial
Bonuses," and (i-vi) collectively referred to hereinafter as the "Bonus
Components").
2. The amount of each Financial Bonus shall be determined based on the
following chart in accordance with the rules set forth below such chart.
Downward adjustments to financial goals may be made by the Investors in
their sole discretion, acting reasonably.
--------------------------------------------------------------------------------
FINANCIAL BONUS METRIC
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CASH ON BALANCE SHEET BONUS1 Cash on balance sheet at December 31, 2004
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
HEADCOUNT BONUS2 12/31/04 headcount
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EBITDA BONUS3 August - December 2004 EBITDA
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
REVENUE BACKLOG BONUS4 2005 Revenue Backlog as of December 31, 2004
--------------------------------------------------------------------------------
-------------
1 Pro forma for IA-8 capital expenditures, acquisition of ComSat General, and
repayment of the existing Term Loan due June 2005. Cash level contingent on
payables being at an "ordinary course" level.
2 Number on the right is the total staff including temporary employees, T&M
contractors and positions being advertised and the number on the left is the
total staff excluding temporary employees, T&M contractors and positions being
advertised.
3 Excludes Galaxy, WildBlue, ComSat General and non-recurring items.
4 Excludes Galaxy, WildBlue and ComSat General.
RULE 1: Subject to Rule 2, the amount of each Financial Bonus shall be
determined as follows:
--------------------------------------------------------------------------------
If the level of achievement of the metric The amount of such Financial Bonus
corresponding to such Financial Bonus shall equal . . .
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
is less than the corresponding Tier I zero
Threshold
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
equals or exceeds Tier I Threshold 100% of the Metric Target Bonus
but is less than the corresponding corresponding to such Financial
Tier II Threshold Bonus
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
equals or exceeds the corresponding Tier 125% of the Metric Target Bonus
II Threshold but is less than the Amount corresponding to such
corresponding Tier III Threshold Financial Bonus
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
equals or exceeds the corresponding 150% of the Metric Target Bonus
Tier III Threshold but is less than the Amount corresponding to such
corresponding Tier IV Threshold Financial Bonus
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
equal or exceeds the corresponding 175% of the Xxxxxxx Target Bonus
Tier IV Threshold Amount corresponding to such
Financial Bonus
--------------------------------------------------------------------------------
RULE 2: Notwithstanding Rule 1, in the event that the level of achievement of
any of the metrics corresponding to any of the individual Financial Bonuses is
less than the Minimum Threshold corresponding to such metric, no Financial
Bonuses (notwithstanding whether any individual Financial Bonus performance
resulted in an achievement of the corresponding metric equal to or in excess of
the applicable Tier I Threshold) shall be paid.
3. The amount of the Orbit Act Bonus shall be determined as follows:
[ ]
4. The amount of the Retiree Medical Bonus shall be determined based on whether
the following performance goals are achieved:
o Goal #1: [ ]
o Goal #2: [ ]
If both goals are achieved, the Retiree Medical Bonus shall equal 20% of annual
bonus. If only Goal #1 is achieved, the Retiree Medical Bonus shall equal 4% of
annual bonus. If only Goal #2 is achieved, the Retiree Medical Bonus shall equal
16% of annual bonus. If neither goal is achieved, the Retiree Medical Bonus
shall equal zero.
5. The Transaction Bonus shall be payable, in one or more parts, with each
portion to be paid as soon as practicable following the later to occur of (x)
the Closing and (y) the final determination of the level of performance
achievement necessary to determine the amount of that Bonus Component.
Notwithstanding anything else contained herein, the Transaction Bonus shall be
payable only if the Executive remains employed by Intelsat and its Affiliates
through the Closing. Payment of the Transaction Bonus shall be subject to all
applicable required tax withholding.
6. All determinations hereunder, including determinations of levels of
performance achievement, shall be made in good faith by the Compensation
Committee in its sole discretion.
EXHIBIT A
FORM OF SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release of Claims ("Agreement") is made
by and among Xxxx Xxxxxxxx ("Employee"), an individual, Zeus Holdings Limited
(the "Parent") and Intelsat Global Service Corporation, a Delaware corporation
("Intelsat" or the "Company").
WHEREAS, the Employee is a party to an Employment Agreement with the
Parent and the Company, dated as of January 28, 2005 (the "Employment
Agreement"); and
WHEREAS, the Employee's employment with Intelsat will terminate as of
____________ and Intelsat desires to provide Employee with separation benefits
as set forth in his Employment Agreement to assist Employee in the period of
transition following Employee's termination;
NOW THEREFORE, in consideration of the mutual promises and releases
contained herein and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, the parties agree as follows:
1) SEPARATION BENEFITS.
a) SEPARATION DATE AND FINAL PAYCHECK. Employee's employment with Intelsat
will terminate effective __________ (the "Separation Date"). The
Employee received normal compensation up to and including that date,
including a lump sum payment for all earned but unused vacation less all
required tax withholdings and other authorized deductions.
b) SEVERANCE PAY. Following Employee's execution and non-revocation of this
Agreement, and provided all Company property has been returned, Intelsat
will pay to Employee severance pay in accordance with the terms of the
Employment Agreement, less all required tax withholdings and other
authorized deductions.
c) CONTINUED COVERAGE UNDER GROUP HEALTH PLANS. Employee shall be entitled
to elect to continue coverage under each of the Company's group health
plans in which he was enrolled as of the date his coverage ceases in
accordance with the terms of the Employment Agreement, consistent with
the status and level of coverage that was in place as of such date, in
accordance with the requirements of the Consolidate Omnibus Budget
Reconciliation Act of 1985 and its relevant regulations ("COBRA").
Employee shall be solely responsible for paying the full amount of all
premiums that are chargeable in connection with such coverage, subject
to all requirements of COBRA.
FOR THOSE ELIGIBLE ONLY:
d) RETIREE MEDICAL BENEFITS. Intelsat will apply the length of the
Employee's severance period to determine eligibility to receive retiree
medical benefits.
A-1
e) Except as set forth in this Agreement or as required by federal, state
or local law, Employee shall not be entitled to any additional benefits
relating to Employee's separation of employment; provided, however, that
this Agreement does not affect or impair Employee's rights to the
benefits identified on Schedule 1 to this Agreement [LIST SPECIFIC
ENTITLEMENTS].
2) RELEASE. Employee, on Employee's own part and on behalf of Employee's
dependents, heirs, executors, administrators, assigns, and successors, and
each of them, hereby covenants not to xxx and fully releases, acquits, and
discharges the Parent, Intelsat, and their respective parent, subsidiaries,
affiliates, owners, trustees, directors, officers, agents, employees,
stockholders, representatives, assigns, and successors (collectively
referred to as "Intelsat Releasees") with respect to and from any and all
claims, wages, agreements, contracts, covenants, actions, suits, causes of
action, expenses, attorneys' fees, damages, and liabilities of whatever kind
or nature in law, equity or otherwise, whether known or unknown, suspected
or unsuspected, and whether or not concealed or hidden, which Employee has
at any time heretofore owned or held against said Intelsat Releasees,
including, without limitation, those arising out of or in any way connected
with Employee's employment relationship with Intelsat or Employee's
separation from employment with Intelsat, except with respect to those
benefits set forth in Paragraph 1 of this Agreement.
3) TIME TO CONSIDER AGREEMENT. Employee may take twenty-one (21) days from the
date this Release is presented to Employee to consider whether to execute
this Release, and may wish to consult with an attorney prior to execution of
this Release. Employee, by signing this Agreement, specially acknowledges
that he/she is waiving his/her right to pursue any claims under federal,
state or local discrimination laws, including the Age Discrimination in
Employment Act, 29 U.S.C. Section 626 ET SEQ., which have arisen prior to
the execution of this Release. This release shall become final and
irrevocable upon execution by the Employee, except that if Employee is age
40 or older, Employee may revoke the Release at any time during the seven
(7) day period following Employee's execution of the Release, after which
time it shall be final and irrevocable.
4) RESTRICTIVE COVENANTS INTACT. Employee hereby acknowledges the continuing
validity and enforceability of the terms of the Employment Agreement
(including without limitation the noncompetition covenant of Section 5.3
(the "NONCOMPETE")), the Conflict of Interest and Confidentiality Agreement,
and/or any other confidentiality agreement or restrictive covenant that
Employee signed during Employee's employment with Intelsat. Employee hereby
affirms his/her understanding that Employee must remain in compliance with
those terms following the Separation Date. In the event that it should be
proven in a court of competent jurisdiction that Employee has materially
violated any of the terms of the Noncompete or the Confidentiality Agreement
and has failed to cure such breach following receipt of written notice of
same and a reasonable opportunity to cure, Employee shall repay Intelsat, in
addition to any other relief or damages to which Intelsat might be entitled,
the Separation Benefits described in subparagraph 1(b).
5) CONFIDENTIALITY. Employee and Intelsat agree that the existence and terms of
this Agreement are strictly confidential and that neither party shall
disclose the existence or terms of this Agreement except as required by law
or regulation. Employee further agrees
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that if Employee breaches this confidentiality provision, Employee shall
repay Intelsat the Separation Benefits described in subparagraph 1(b).
6) NONDISPARAGEMENT. Employee hereby covenants and agrees that Employee will
not at any time, directly or indirectly, orally, in writing or through any
medium (including, but not limited to, the press or other media, computer
networks or bulletin boards, or any other form of communication) disparage,
defame, or otherwise damage or assail the reputation, integrity or
professionalism of Intelsat or any of the Intelsat Releasees. Employee
further agrees that if Employee breaches this nondisparagement provision,
Employee shall repay Intelsat the Separation Benefits described in
subparagraph 1(b).
7) REFERENCES. All inquiries to Intelsat concerning Employee's employment shall
be directed to the [SENIOR VICE PRESIDENT OF HUMAN RESOURCES], who shall
confirm dates of employment and level of compensation of the Employee during
Employee's employment with Intelsat.
8) MISCELLANEOUS. This Agreement is governed by the laws of the District of
Columbia. If any of the provisions of this Agreement are held to be illegal
or unenforceable, the Agreement shall be revised only to the extent
necessary to make such provision(s) legal and enforceable.
9) RETURN OF PROPERTY. Employee hereby represents to the Company that all
property belonging to Intelsat has been returned, including, without
limitation, all keys, access cards, passwords, access codes, and other
information necessary to access any computer or electronic database; all
books, files, documents, and electronic media; and all Company property of
any kind that Employee has in his/her possession or control, or that
Employee obtained from the Company.
10) ENTIRE AGREEMENT. Employee agrees that this Agreement contains and comprises
the entire agreement and understanding between Employee, the Parent and the
Company regarding Employee's termination of employment; that there are no
additional promises between Employee and the Parent and/or the Company other
than those contained in this Agreement or any continuing obligations as
described in paragraphs 1(e) and 4; and that this Agreement shall not be
changed or modified in any way except through a writing that is signed by
both the Employee and the Company; provided, that the obligations of
Employee under the Shareholders Agreement, dated as of January 27, 2005, by
and among Zeus Holdings Limited, a Bermuda company and the Shareholders (as
defined therein) remain in effect without amendment by this Agreement.
The parties acknowledge that they have read the foregoing Agreement,
understand its contents, and accept and agree to the provisions it contains
voluntarily and knowingly, and with full understanding of its consequences.
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Intelsat Global Service Corporation
By:
------------------------------- --------------------------------------
Xxxx Xxxxxxxx: [NAME]
[TITLE]
Date: Date:
-------------------------- ------------------------------------
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EXHIBIT B
INTELSAT CONFLICT OF INTEREST
AND CONFIDENTIALITY AGREEMENT
In consideration of my employment or continuing employment by Intelsat and the
compensation received from Intelsat by me from time to time and other good and
valuable consideration, the sufficiency of which I hereby acknowledge, I, Xxxx
Xxxxxxxx (hereinafter referred to as "Employee"), agree as follows:
(A) PRIOR UNDERSTANDING
1. Employee warrants as follows:
INITIAL AS APPROPRIATE:
a. That he or she is ( )* / is not ( ) restricted by any contract with a
previous employer or any other person or business from accepting
employment with Intelsat,
b. That he or she has ( )* / has not ( ) signed any confidentiality,
non-disclosure, or non-competition agreement with a previous employer
or any other person or business that would affect Employee's ability
to perform his or her duties for Intelsat, and
c. That he or she is ( )* / is not ( ) under any other obligations to a
previous employer or any other person or business except as may exist
under federal or common law.
*PLEASE PROVIDE DETAILS AND COPIES OF SUCH CONTRACTS OR AGREEMENTS TO YOUR
HUMAN RESOURCES REPRESENTATIVE PRIOR TO EMPLOYMENT.
2. Employee agrees that he or she will not disclose to Intelsat any trade
secrets acquired during his or her employment or association with a previous
employer or acquired during his or her employment or association with any
other entity. Employee acknowledges that any disclosure to Intelsat in
violation of this Paragraph may constitute cause for discharge from
employment.
(B) FULL EFFORTS WHILE EMPLOYED
Intelsat is entitled to Employee's full-time efforts during the course of
employment. Employee may not use the facilities of, or identification with,
Intelsat to carry on a private business or profession. Employee shall also not
engage in a profit or non-profit activity outside employment with Intelsat if
this activity:
a. Is in competition with Intelsat or provides goods, services, or
assistance to a competitor;
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b. Involves doing business with a supplier of goods or services to
Intelsat or any Intelsat customer;
c. Interferes with the Employee's assigned duties at Intelsat.
Notwithstanding the foregoing, nothing herein shall per se prevent the Employee
from performing his duties in connection with service as a non-executive
director on the board of directors of another company pursuant to Section 1.2 of
the Employee's Employment Agreement, dated as of January 28, 2005, by and among
Zeus Holdings Limited, Intelsat Global Services Corporation Inc. and the
Employee, so long as such duties do not interfere with the Employee's duties at
Intelsat.
(C) INVENTIONS AND DISCOVERIES
INVENTIONS AND DISCOVERIES
Except as may be provided otherwise in prior written agreements between the
Employee and Intelsat, Employee will disclose and assign to Intelsat all
designs, improvements, inventions, and discoveries relating to the business of
Intelsat that have originated or will originate in connection with work done for
Intelsat, that are made, first reduced to practice, discussed, or conceived by
Employee or by Employee jointly with others during any previous or future period
of employment with Intelsat. The foregoing obligation to disclose and assign to
Intelsat the designs, improvements, inventions, and discoveries of Employee
shall apply whether or not they are first reduced to practice, devised, or
conceived during regular working hours, or on Intelsat's premises, and/or at the
expense of Intelsat. All such designs, improvements, inventions, and discoveries
shall remain Intelsat's property whether or not so disclosed or assigned and
Employee will cooperate fully with Intelsat during and after Employee's
employment in accomplishing the intent of this provision. Per written agreement
by and between Intelsat and Employee, Intelsat, at its option, may elect to
share royalties accruing to Intelsat resulting from Employee's efforts as
described herein. As to all such designs, improvements, inventions, mask works,
and discoveries, Employee will assist Intelsat in every proper way (but at
Intelsat's expense) to obtain and from time to time enforce patents, copyrights,
trademarks, trade secrets, and other proprietary rights and protections related
to said designs, improvements, inventions, mask works, and discoveries in all
countries, and to that end will execute all documents for use in applying for
and obtaining such patents, copyrights, trademarks, trade secrets, and other
proprietary rights and protections on and enforcing such designs, improvements,
inventions, and discoveries, as Intelsat may desire together with any
assignments thereof to Intelsat by persons designated by it.
AGREEMENTS PRESENTLY IN EFFECT
Exhibit 1 is a list and summary of all agreements presently in effect between
Employee and others (excepting prior agreements between Employee and Intelsat)
relating to any prior employment or right, title, or interest in or to his or
her part of future inventions, improvements, discoveries, and new ideas, or to
patent applications or patents relating thereto; and he or she warrants that
Exhibit 1 is a complete list of such agreements. A copy of each agreement so
listed
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is attached hereto; and if no such list or no such copies are attached,
Employee warrants that no such agreements are now in effect.
PATENTS, APPLICATIONS, INVENTIONS
Exhibit 2 is a list and summary of all patents issued on inventions made by
Employee before entering Intelsat's employ, all pending applications filed on
such inventions, and all such inventions for which no patents have been obtained
or applications therefore filed, and he or she warrants that Exhibit 2 is a
complete list of such patents, applications, and inventions. All such patents,
applications, and inventions so listed are excluded from the operation of this
Agreement; and if no such list is attached, Employee warrants that no such
patents, applications, or inventions exist.
NON-APPLICABILITY
Paragraph C of this Agreement does not apply to an invention which:
1. Was developed entirely on the Employee's own time without using
Intelsat's equipment, supplies, facilities, or trade secret
information; and
2. Does not relate at the time of conception or reduction to practice of
the invention to Intelsat's business, or actual or demonstrably
anticipated research or development of Intelsat; and
3. Does not result from any work performed by the employee for Intelsat
(California Labor Code, Art. 3.5, Paragraph 2870).
(D) CONFIDENTIAL INFORMATION
Employee understands that, in the course of his or her employment with Intelsat,
he or she will be given access to Confidential Information and trade secrets
including, but not limit to, discoveries, ideas, concepts, software in various
stages of development, designs, drawings, specifications, techniques, models,
data, source code, object code, documentation, diagrams, flowcharts, research,
development, processes, procedures, "know-how," marketing techniques and
materials, marketing and development plans, business plans, merger or
acquisition investigations, customer names and other information relating to
customers, price lists, pricing policies, and financial information.
Confidential Information also includes any information described above which
Intelsat obtains from another party and which Intelsat treats as proprietary or
designates as Confidential Information, whether or not owned or developed by
Intelsat. Employee agrees that during his or her employment by Intelsat and
thereafter to hold in confidence and not to directly or indirectly reveal,
report, publish, disclose, or transfer any Confidential Information to any
person or entity, or utilize any Confidential Information for any purpose,
except in the course of Employee's work for Intelsat. Employee agrees to turn
over all copies of Confidential Information in his or her control to Intelsat
upon request or upon termination of his or her employment with Intelsat.
(E) NON-SOLICITATION OF EMPLOYEES
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Employee agrees that during his or her employment with Intelsat and for one (1)
year thereafter, he or she will not, either directly or indirectly, hire
Intelsat employees or former employees (which shall for this purpose include any
individual employed by Intelstat at any point during the year preceding such
hiring), induce, persuade, solicit or attempt to induce, persuade, or solicit
any of Intelsat's employees to leave Intelsat's employ, nor will he or she help
others to do so. This means, among other things, that if Employee's employment
with Intelsat terminates (whether voluntarily or involuntarily), he or she shall
refrain for one (1) year from giving any person or entity the names of his or
her former, fellow employees or any information about them, as well as refrain
from in any way helping any person or entity hire any of his or her former,
fellow employees away from Intelsat. This shall not be construed to prohibit
general solicitations of employment through the placing of advertisements.
(F) REASONABLENESS OF RESTRICTIONS AND AT-WILL EMPLOYMENT
Employee acknowledges and agrees that the restrictive covenants contained in
this Agreement (1) are necessary for the protection of the Company's business;
(2) will not unduly restrict Employee's ability to earn a livelihood after
termination of employment; (3) are reasonable in time, territory, and scope; and
(4) do not provide for any guaranteed term of employment and that employment
remains at-will, except as may otherwise be provided in the Employment Agreement
between the Employee, Intelsat, and Zeus Holdings Limited, dated January 28,
2005.
(G) ASSIGNABILITY
This Agreement may be assigned by the Company in the event of a merger or
consolidation of the Company or in connection with the sale of all or
substantially all of the Company's business.
(H) REFORMATION AND BLUE PENCILING
The covenants of this Agreement shall be severable, and if any of them is held
invalid because of its duration, scope of area or activity, or any other reason,
Employee agrees that such covenant shall be adjusted or modified by the court to
the extent necessary to cure that invalidity, and the modified covenant shall
thereafter be enforceable as if originally made in this Agreement.
(I) MODIFICATION
This Agreement may be modified only by a written document signed by the General
Counsel of Intelsat.
(J) BREACH OF AGREEMENT
Employee agrees that, if he or she should ever breach any of the provisions of
the Agreement, he or she shall be personally liable to Intelsat for any direct
and indirect damages suffered by Intelsat, including, but not limited to,
reasonable attorneys' fees and expenses incurred in connection with actions
undertaken by Intelsat to enforce this Agreement or to seek redress of any
breach of this Agreement. Employee further agrees that an impending or existing
violation of any of the provisions of this Agreement would cause Intelsat
irreparable injury for which it would have no adequate remedy at law, and agrees
that Intelsat shall be entitled to obtain
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injunctive relief prohibiting such violation, in addition to any other rights
and remedies available to it at law or in equity, without posting any bond or
other security and without the necessity of proof of actual damage, in addition
to, and not in lieu of, such other remedies as may be available to the Company
for such breach, including the recovery of money damages. .
(K) ENFORCEMENT OF PROVISIONS
This Agreement (1) constitutes my entire agreement with Intelsat with respect to
the subject matter hereof, (2) shall be binding on my heirs, executors,
administrators, and legal representatives, and (3) shall inure to the benefit of
Intelsat's successors and assignees.
(L) GOVERNING LAW
This Agreement shall be governed, construed, and enforced in accordance with the
laws of the District of Columbia.
IN WITNESS HEREOF, Employee has caused this Agreement to be duly executed.
Date: _________________________
Signature: _________________________
Employee Name (Printed): _________________________
Social Security Number: _________________________
Mailing Address: _________________________
_________________________
_________________________
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EXHIBIT 1
AGREEMENTS PRESENTLY IN EFFECT
Attached hereto is a list and summary of all agreements presently in
effect between the Employee and others (excepting prior agreements between the
Employee and Intelsat) relating to any prior employment or to any right, title,
or interest in or to his or her part or future inventions, improvements,
discoveries, and new ideas, or to patent applications or patents relating
thereto; and he or she warrants that this is a complete list of such agreements.
A copy of each agreement so listed is also attached hereto; and if no such list
or no such copies are attached, the Employee warrants that no such agreements
are in effect.
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EXHIBIT 2
PATENTS, APPLICATIONS, INVENTIONS
Attached hereto is a list and summary of all patents issued or inventions made
by the Employee before entering the Employee's employ, all pending applications
filed on such inventions, and all such inventions for which no patents have been
obtained or applications therefore filed and he or she warrants that this is a
complete list of such patents, applications, and inventions. All such patents,
applications, and inventions so listed are excluded from the operations of this
Agreement, and if no such list is attached, the Employee warrants that no such
patents, applications, or inventions exist.
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EXHIBIT 3
New Skies
PanAmSat
Eutelsat
SES Global
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C-1
